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child. 106

Other courts have recognized this principle, primarily in the custody modification context. '07 In any case, an award of adequate child support is preferable to disruption of the child's relationship with an established caretaker. 108

The unfairness of applying the economic circumstances factor is exacerbated in domestic violence cases. A battered woman may have been prohibited by the batterer from working outside the home. She may have lost jobs due to harassment at work, sabotage of her means of transportation, or poor performance or absenteeism caused by physical injuries. An expert can testify that these difficulties are typical when a battered woman is trying to escape the relationship and that the violence has prevented the victim from achieving financial stability.

Temporary custody is probably the single most important determinant of permanent custody. Courts want to preserve the stability of a child's life, especially if the child has been thriving, and so they hesitate to move a child away from the parent with whom he or she has been living. This is especially true if temporary custody has been determined by court order. It represents a finding that the temporary custodian is fit and, if temporary custody has been litigated, a finding that the temporary custodian once appeared to be the better parent. Therefore, a parent seeking permanent custody should seek a temporary custody order whenever possible to improve her posture during negotiation and at trial.

An order for temporary custody is also necessary to protect against child abduction. Absent a court order, mother and father have equal custody rights. This is true regardless of whether the parents are married and regardless of the abducting parent's history, or lack of history, of involvement with the children. Even though custodial interference laws may provide otherwise, police and prosecutors often will not file charges or move to secure the return of a child without a custody order. An innocent parent cannot, from a practical standpoint, regain custody until after she has served the abductor with an order to show cause and a hearing has been held.

C. Exaggerated or Unfounded Allegations of

Violence

The father may argue that there is no evidence to corroborate the mother's allegations of violence. He may claim that the violence was “mutual” and that both parties engaged in it. He may suggest that, even if violence did occur, it is irrelevant to the custody determination. Unfortunately, there is evidence that trial judges are often receptive to these arguments. 109

Expert testimony may refute the allegation that the violence claims are unfounded. Studies show that a batterer assaults his victim in privacy and often inflicts injuries on parts of her body that are covered by clothing or not visible at a casual glance, such as the back of her head."10 Moreover, a victim is more likely to minimize the violence or to remain silent about it until she feels safe, rather than exaggerate it; while still involved in a relationship, 43 percent of all battered

Temporary custody orders are available in matrimonial or paternity proceedings, but they are not the only avenue available to a battered woman seeking temporary custody of her children.

Temporary custody orders are available in matrimonial or paternity proceedings, but they are not the only avenue available to a battered woman seeking temporary custody of her children. At least 46 states and the District of Columbia allow a victim of domestic violence to obtain an order of protection

105. Burchard, 724 P.2d 486. 106. Id. at 492 (emphasis added). 107. E.g., Gould v. Gould, 342 N. W.2d 426 (Wis. 1984); Kennedy v.

Kennedy, 715 S.W.2d 460 (Ark. Ct. App. 1986). 108. See Burchard, 724 P.2d at 492; Kennedy, 715 S.W.2d at 462. 109. ADVISORY COMM., Note, supra note 51. 110. MARTI supra note 20, at 49.

111. Schulman, A Survey of Spousal Violence Against Women in

Kentucky 3 (U.S. Dep't of Justice 1979). 112. U.S. DEP'T OF JUSTICE, supra note 30. 113. MARTIN, supra note 20, at 46-48.

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clear-cut or the batterer has an economic advantage, the batterer may serve the victim with a dissolution petition at the OP hearing. He will likely claim that the OP petition is an attempt to gain an unfair advantage in a custody dispute. He thus has an opportunity to attack the victim's claims of violence that he would not have had otherwise. He also gains an advantage when he appears at the hearing with his attorney, while she is pro se, and he may win custody as a result.

Another disadvantage exists in those cases in which courts award joint custody and make the OP mutual so as not to prejudice either party in subsequent custody proceedings. Orders that restrain the victim as well as the abuser may deny the victim due process if the judge issues the order sua sponte. They also imply that the victim shares the blame for the abuse, and they are of little use as proof of violence. Police officers are often uncertain about how to enforce mutual OPs, so the deterrent value of the OP is also lost. To date, only Illinois has regulated the issuance of these orders. 118

Consequently, if the client can obtain an attorney to file for a divorce, even given exigent circumstances such as a child snatch, she should probably not act pro se to seek an OP.

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B. Mediation

(OP) against an abuser."'4 The victim can generally act pro se. If she has children, in many states the OP may grant her temporary custody and exclusive use of a formerly shared residence.115

In most states, a victim who can establish that a child snatch threat or other imminent harm exists may obtain an ex parte custody order. The order lasts until a hearing is held, usually no more than 14 days later. Legislation authorizing this procedure has withstood due process challenges."6 An ex parte OP can be an extremely important remedy for a victim, especially if she has left with the children.

A victim seeking an ex parte order, particularly one who fears a child snatch, should act quickly. Swift action will lend credence to her claim that the danger to herself and the children is real and imminent. Because OP hearings are not always held on the record and judges rarely make detailed written findings, a victim should complete her form petition in detail, including dates of incidents and an indication of when the children were present, her injuries, and the resulting criminal arrests of or charges lodged against the abuser. When the victim fills out her form order, she should request specific hours and any necessary transportation or supervision safeguards for visitation. If the request is granted, she will have a strong basis for negotiating similar terms in a final custody order.

An OP has an additional significant advantage for a battered woman seeking custody. Procedurally, the OP proceeding can be consolidated with the domestic relations case. However, the OP itself is premised on a judicial finding that the abuse has been violent. It is something more than the routine, mutual restraining order issued as part of the domestic relations case. A judicial finding that the batterer has been violent will likely be recognized by a custody investigator.

From a practical standpoint, the OP gives the victim safety from the violence and an opportunity to restore stability to her life and that of her children. Her ability to build a stable, violence-free life for herself and the children during the effective period of the OP can help establish her superiority as a parent. She should report violations of the order to the police and to counsel. Reporting provides evidence of criminal conduct that may be useful at trial and demonstrates to the abuser and the court that the client will take action to end the violence.

An OP is not always appropriate. It provides only temporary relief. Since the same relief is often available in a matrimonial proceeding, it may be unnecessary if the victim is certain that she wants a divorce. If a victim has left children behind, if she has waited a long time before acting, if there are complicating issues such as substance abuse, if the case involves emotional abuse, or if the evidence of physical violence is not clear-cut, she should not act pro se.

Other reasons to reject the OP option arise from the backlash seen by the battered women's movement. Some judges refuse to believe the violence represents a threat to the victim's safety."? In these jurisdictions, if the abuse evidence is not 114. The states that do not provide such a remedy are Arkansas, Idalio,

Indiana, and New Mexico. 115. See, e.g., Wash. Rev. Code $8 26.50 et seq. 116. See, e.g., Williams ex rel. Marsh v. Marsh, 626 S.W.2d 223 (Mo.

1982). 117. In a recent case from Somerville, Massachusetts, a district court judge told a victim seeking a police standby while she moved her

(footnote 117 continues)

120

121

Mediation is a process through which litigants attempt to resolve their disputes in face-to-face negotiations facilitated by an impartial third party. It assumes the parties' good faith and some degree of equality in their respective abilities to bargain with one another.'19 Several states now require that disputed custody and visitation cases go to mediation without exception."? In two states, mediation is waived if the parties allege domestic violence or child abuse.

Because neither good faith nor equality of bargaining power tend to exist in a battering relationship, mediation is dangerous for the battered woman. Counsel may seek waiver, perhaps at the initial show cause hearing based on a civil OP, an order in a criminal case prohibiting contact between the parties, or other evidence of violence. However, if the client does go to mediation, her attorney should describe the process to her, especially the hazards, and discuss with her how best to handle the session.

The client should be made aware of which issues are appropriate for mediation under local guidelines and which are not. She should not sign any agreements until her lawyer has reviewed them. Above all, she should understand that undergo

122

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property from the home that she should return to the home while her husband was not there and act as an adult." The husband is now awaiting trial for the woman's murder; the judge has been criticized for his handling of the case. 41 WOMEN AND THE LAW

3-4 (Apr. 1987). 118. llL. ANN. Stat. $ 215. 119. Ange, Mediation, Panacea and Placebo?, 57 N.Y. State BAR J.

6, 10 (May 1985). 120. E.g., Cal. Civ. PROC. CODE $ 1745. 121. MINN. ANN. Stat. $ 518.619; OR. Rev. Stat. $$ 718.255 el

seq. 122. Some states authorize mediution of all issues in a matrimonial

case; some only permit mediation of custody and visitation, Compare DEL. Fam. Ct. R. 16 with Alaska Stat. § 25.24.060.

ing mediation may be required, but that reaching an agreement is not.

The client should also recognize the hazards of giving previously undisclosed, unknown information to the abuser during mediation. Mediators often raise such issues as plans for remarriage, relocation, day care, or employment, and clients report this information promptly to counsel for use in trial preparation. Admissions made in mediation may subsequently be elicited during formal discovery, and counsel loses control over the timing of the information's disclosure. Also, in some states, such as California, the mediator may make a recommendation to the court. The parties have the right to cross-examine the mediator, 123 but the damage of disclosure is already done.

It is also unlikely that mediation testimony will be prohibited in the absence of a statutory privilege, although the law is uncertain even on this. For example, California allows the mediator's recommendation and cross-examination to be admitted even though the rules of evidence make the parties' statements confidential, official information. 124 However, the State of Washington prohibits mediator testimony altogether. 125 Counsel may make analogies to the case law permitting parents to assert the psychotherapist-patient privilege, but those cases have limited applicability to sessions occurring after the litigation has started. 126

In a few states, training for mediators in domestic violence and its effects on children is required. "27 In any case, the mediator should be made aware of the violence; usually he or she should review the court file before the session. Steps can be taken to avert a batterer's attempts to intimidate the victim. Mediation may be conducted in separate rooms, over the telephone, or with meetings scheduled at different times of the day. Precautions should be taken to prevent harassment before or after mediation. One may argue that counsel should be present. Analogous cases have involved psychiatric evaluations in parental rights termination cases in which the adverse party is the state, or psychiatric examinations in matrimonial

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128

actions. 129

Mediation is likely to be difficult for a battered woman. However, most mediation participants in court-appointed programs attend no more than one to three sessions, lasting about two hours each.130 Once the client has completed this requirement, she can focus more completely on developing her case.

C. The Custody Investigation

a privately paid psychologist, a low-income family will either have no investigation at all or one by a caseworker from a court-operated program. The caseworker writes a report, which must be made available to both parties' counsel.131 The report can be admitted, and the worker is then subject to crossexamination at trial.132 If the battered woman has moved to a different county or state, the court can make a referral to a counterpart program in her area for a report. At least one court has held that the out-of-state report may be admitted at trial, if satisfactory arrangements are made for cross-examination of the out-of-state expert. Like an offer of proof, the report provides an opportunity to put evidence that might otherwise be inadmissible before the court.

The importance of the custody caseworker's recommendation should not be underestimated. It has been estimated that judges follow these recommendations about 90 percent of the time. 134 Yet custody caseworkers come from a variety of backgrounds. They do not uniformly receive training on the effects of domestic violence on children or on the behavioral characteristics of batterers and battered women. As is true of the judges

133

While well-to-do parties to a custody dispute may choose

123. McLaughlin v. Superior Court, 140 Cal. App. 3d 473, 189 Cal.

Rptr. 479 (1983). 124. Id. and Cal. Evid. CODE 3 1040. 125. Wash. Rev. CODE § 26.09.015. 126. See Part IV.C., supra; M.B. v. L.D.B., 295 Pa. Super. I, 440

A.2d 1192 (1982) (in dicta, recognizing a privilege for statements

to a clergyman-marriage counselor who met with both parties). 127. Cal. Civ. PROC. CODE $ 1745.5. 128. Alaska Stat. $ 25.24.060. 129. In re Alexander L., 60 N.Y.2d 329, 457 N.E.2d 731 (1983);

Sardella v. Sardella, 509 N. Y.S.2d 109 (App. Div. 1986). 130. Pearson & Theonnes, The Effects of Divorce Mediation and

Adjudication Procedures on Women 21 (Sept. 1984) (unpublished paper based on a study of mediation procedures in California, Colorado, Connecticut, and Minnesota).

131. Duro v. Duro, 392 Mass. 574, 467 N.E.2d 165 (1984).
132. Id.; Fewel v. Fewel, 23 Cal. 2d 431, 114 P.2d 592 (1943).
133. Johnson v. Lundell, 361 N.W.2d 125 (Minn. Ct. App. 1985).
134. Estimate for King County, Washington, by Commissioner Stephen

Gaddis in a speech delivered to a Continuing Legal Education
Seminar in Snohomish County, Washington (June 25, 1982).

the stress of the custody investigation, she will probably need emotional support. Rather than address emotional problems, which most lawyers are not trained and do not wish to do, the lawyer should help the client find a suitable mental health professional or group. For low-income victims, therapy groups available through battered women's shelters can provide support. Lay group members may be able to testify to the client's progress over time.

who they advise, they make decisions based on their personal values and biases. 135 Counsel must consider how a particular caseworker is likely to react to a given fact pattern.

To increase the likelihood of a favorable report, counsel should prepare the client thoroughly for the investigation. Review with the client her reasons for seeking custody and the references that she will list. She should appear on time for appointments, appear well groomed, and provide requested documents and references, unless disclosure would jeopardize her safety or that of the children. Useful evidence of violence includes photographs showing injuries, medical records, police reports, copies of past orders of protection, records of the batterer's criminal convictions, or references to witnesses in a criminal case. Counsel may contact the worker during an investigation to provide this information and to be sure that the client is cooperating to the worker's satisfaction.

Counsel can also play an important but difficult role in making the investigator aware of the violence so that the client does not appear vindictive if she wants to limit the abuser's contact with herself and her children. Counsel may remind the caseworker of the need to schedule separate appointments for the parties, to avoid informal mediation, and to otherwise protect the victim from further abuse during investigation.

In working with the client, counsel should be aware that a battered woman often vacillates about her legal case.

D. Factual Development

In assessing the case and preparing a trial strategy, the attorney for a battered woman should be alert to evidence that falls into patterns common to abuse cases. For example, explore whether the batterer is seeking reconciliation while making a formal demand for custody; what events sparked violent incidents; the nature of the batterer's relationship with his parents and siblings; threats or acts of violence against the victim's friends or family; difficulties the victim has experienced at the workplace due to violence; and other indicia of whether the case is a “classic" abuse case. The closer a case fits the paradigm, the greater the accuracy with which an expert can predict future behavior.

To develop the facts, the client should participate as much as possible in gathering evidence. She should report renewed violence to the police and to counsel. She should keep a journal or calendar that shows when visitation occurred, when it was missed, and whether there were any problems. If she does not have custody, she should exercise her visitation rights consistently. If there is any possibility that she has been injured by the abuser, she should see a doctor. Whether or not she has custody, she should provide any medical, dental, and educational care needed by the children and keep a record of whether the father does so. If the children have emotional or learning difficulties, she should have them evaluated and treated. She should also comply strictly with all court orders. In these ways, she will prove that she is a responsible and capable parent.

The client may also improve her position by obtaining counseling, since seeking help is a sign of maturity. In any case, between the stress of the abuse that she has suffered and

In working with the client, counsel should be aware that a battered woman often vacillates about her legal case. This is especially true if she has not totally separated from the abuser. She may still be traveling the cycle of violence. Attorneys representing battered clients must be mindful of strategies necessary to break this pattern. The attorney who fails to empower the client by encouraging and relying upon her decisions will often find him or herself at trial with a client whose testimony is weak and vacillating. 136 However, if the client has temporary custody but wants to dismiss her case, counsel may suggest that it simply be put on hold instead, since dismissal would mean losing the advantage of the custody order. The client should be counseled that, in light of the past violence, it would be unwise to dismiss the lawsuit only to have to start all over should a problem again develop. In fault jurisdictions, dismissal may also nullify the client's current divorce claims of extreme cruelty or abandonment and require that she establish new grounds for divorce in a later case.

A battered woman should be counseled about several matters crucial to proper factual development. For example, she should be advised never to leave the children with the father for more than regular visitation. If she asks the father to take the children for a week while she tries to find work or a place to live, she runs three serious risks. First, the father, now having physical custody, might obtain an ex parte order giving him legal custody. The burden would then be upon the client to prove that it would be in the children's best interests to uproot them from their father and place them with her. Second, the father may claim that her action demonstrates her lack of interest in the children and her instability. Third, voluntarily giving the children to the father undermines the mother's assertion that the father is unable to care for the children and lacks involvement in their lives.

An early deposition of the batterer will convey the message that the client is serious and will not capitulate to the batterer's demands. If possible, the client should be present at the deposition to emphasize this point. As always, a deposition provides a chance to assess the opponent's seriousness and his credibility as a witness, and to explore settlement. In addition, an early deposition may either lock the batterer into an untenable position of extreme denial of the violence or prevent him

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135. Levy, Custody Investigations in Divorce Cases 107 (1985)

(unpublished paper based on a study of custody investigations in Hennepin County, Minnesota).

136. Letter from Lon McClintock, Staff Attorney with Vermont Legal

Aid, to Lucy Moss, Managing Editor of Clearinghouse Review (July 27, 1987).

from later fabrication. He should be questioned about the abuse, his complaints about the victim as a parent, his reasons for seeking custody, and the custody and visitation arrangements for which he would be willing to settle.

140

Any form of joint custody, even joint legal custody, is inappropriate for a violent family. Most of the identifying characteristics of couples who have failed with joint custody are typically present in the relationship between batterer and victim. Courts that have considered the issue agree that a history of parental conflict should preclude a joint custody

E. Negotiation

award. 141

142

143

Negotiation can be particularly difficult in abuse cases for several reasons. First, the abused client who is threatened with losing custody to the man who has overpowered her so often in the past may quickly accept disadvantageous property and child support settlements in exchange for custody. Second, opposing counsel may bargain from an incorrect view of the facts, since his or her client is likely to have minimized the violence and perhaps otherwise distorted the situation. Finally, the opposing attorney may be unable to make his or her client accept a settlement that the attorney believes is favorable.

Several strategies may be effective. The opposing attorney should be given proof of the true extent of the violence, of psychological findings on the ramifications of violence for the children, and of the client's responsibility for the violence. The battered client and her counsel should agree that negotiations will occur through the attorneys, thus limiting the client's informal negotiation with the batterer. In addition, the victim's seriousness and strength (qualities in her heretofore unknown to the batterer) will be demonstrated by aggressive legal advocacy and strict adherence to all court orders.

144

Most joint custody arrangements are for joint legal custody with primary physical custody in one parent, usually the mother. This often appears to be an acceptable settlement to a victim, who may sense that the batterer will not genuinely take an interest in such issues as choice of the children's doctor or the religion they follow. However, counsel must be certain that she recognizes the other consequences of the term “joint legal custody.” It means that the batterer must have access to her address and telephone number. It also gives the batterer power to determine whether she and the children can move from the state, or even where they can live within the state, if the parents must agree on where the children will go to school.

A growing number of states penalize parents who deny visitation, either by weighing this conduct against them in an initial custody decision, or by making it a basis for custody modification.146 These “friendly parent" provisions place the burden on the battered woman to explain her reluctance to allow visitation.

Expert testimony on domestic violence may address the friendly parent issue effectively. A battered woman who has left her abuser often has done so because of potential harm to the children. The father may be using visitation to persuade the children that the mother is unfit or that they should want to live with him for other reasons. The client may fear that a child snatch will occur during visitation. However, absent compelling

145

F. Judicial Attitudes: Joint Custody,

Friendly Parents, and Battered Women

137

A number of states now have legislation or case law authorizing joint custody without both parties' agreement. One scholar has suggested that trial judges, who understandably "find custody disputes between parents painful," choose joint custody in order to avoid the appearance of labeling either parent inadequate—and (they] will blind themselves to signs that the parents are unlikely" candidates for joint custody.' This tendency, especially when coupled with judicial reluctance to acknowledge the relevance of domestic violence evidence, creates a particular challenge for counsel who is faced with a batterer's joint custody claim.

Defining joint custody is a difficult threshold issue:

138

“Joint custody" is used in different and confusing ways. It can mean the equal right to make decisions regarding the child, while the physical custody arrangements remain the same as under a sole custody-visitation order (“-joint legal custody”). Or, it can mean the right of each parent to have the child reside with him or her for a substantial amount of time and, during that time, the parent's duty of daily child-rearing responsibilities (“ joint physical custody").

140. According to Susan Steinman, who has done the only longitudinal studies on joint custody families, these are:

(1) intense, continuing hostility that cannot be diverted from the child;

(2) anger and a continuing need to punish the spouse;
(3) history of physical abuse;
(4) history of substance abuse;
(5) fixed belief that the other is a bad parent;

(6) inability to separate one's feelings and needs from
those of the children.
Steinman, A Study of Parents Who Sought Joint Custody Follow-
ing Divorce, 24 J. OF AM. ACAD. OF CHILD PSYCHIATRY 554,

559 (Sept. 1985). 141. Taylor v. Taylor, 508 A.2d 964 (Md. 1986); In re Marriage of

Weidner, 338 N. W.2d 351 (lowa 1983); Braiman v. Braiman, 44

N.Y.2d 584, 378 N.E.2d 1019 (1978). 142. Phear, Beck, Hauser, Clark, & Whitney, An Empirical Study of

Custody Arrangements, Joint vs. Sole Legal Custody 7 (unpublished study of 500 divorces in Cambridge, Massachusetts). The study found that only 2 percent of the joint legal custody cases-11 out of 500_also resulted in joint physical arrangements. Mothers

retained physical custody 70 percent of the time. 143. See, e.g., Sherry v. Sherry, 622 P.2d 960, 965 (Alaska 1981).

See generally the law review articles cited in the National Center on Women and Family Law's Child Custody Task Force Release No. 10, available for $1 from the Center, 799 Broadway, Room

139

402, New York, NY 10003. 144. See Burchell v. Burchell, 684 S.W.2d 296 (Ky. Ct. App. 1984), in

which the court resolved the question of which school the child

would attend. 145. See, e.g., Cal. Civ. CODE § 4600(b)(1). 146. In re Marriage of Bolin, 336 N. W.2d 441 (lowa 1983).

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137. E.8., Cal. Civ. CODE 4600(b)(1); Beck v. Beck, 86 N.J. 480,

432 A. 2d 63 (1981).
138. Chambers, supra note 35, at 566-67.
139. National CENTER ON WOMEN AND Family Law, LEGAL AD-

VOCACY FOR BATTERED WOMEN 96-7.

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