Clare Dalton, When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System, 37 Fam. & Conciliation Courts Rev. 273 (1999).
For the past 25 years, helping professionals have wrestled with the task of adapting their practices to incorporate new information about abuse and responsibilities toward its victims. Despite a growing body of helpful research, increasing training opportunities and extensive legislative reform, significant obstacles still confront adult and child victims of partner violence in the family court system. This article groups those obstacles into three categories: naming the problem, identifying victims of abuse, and prioritizing victim safety. In each problem area, the author suggests that progress depends on increased integration at the level of theory and increased professional collaboration at the level of practice.
In the quarter century since a grassroots battered women's movement put partner violence on the national agenda, members of nearly every helping profession have wrestled with the task of integrating new information about abuse and new responsibilities toward its victims into existing professional paradigms and practices. For some in every profession, this process has been exhilarating; it has infused new meaning into daily practice, and it has brought professional norms closer to preexisting personal experience and conviction. For a few, the process has been downright unwelcome and has been met with overt or covert resistance. But for many professionals, perhaps most, the relationship between new paradigms and old has been challenging and often confusing. This has left practitioners unsure whether to credit the claims of specialists about either the prevalence of abuse or the levels of risk associated with it. For these practitioners, the question is not whether their new learning is helpful but whether it applies to 5%, 20%, or 50% of their caseloads.
The imagery we customarily use suggests that new knowledge fills gaps in our understanding. In fact, however, we generally prefer to construct our working understandings of the world to be cohesive and relatively gap free. When we have to wrench those understandings apart to make room for new information and insight, the whole structure becomes unstable, and it takes time for a new architecture to emerge. In the interim, we are likely to experience *274 a loss of confidence in our skills and judgment-a particularly frightening prospect when others depend on us for support and assistance.
A cautious observer, seeking to describe how the family court system has responded to the challenge of domestic violence, might summarize the present situation as follows. First, we have a growing body of research, endorsed by all the relevant professional organizations, supporting changes designed to offer more protection to adult and child victims of partner abuse. [FN1] On the other hand, we have barely begun to confront the task of integrating that research and evidence into theories about divorce or child access that support competing practices and norms. This lack of integration at the level of research and theory tends to produce warring camps that engage in unproductive skirmishes at conferences and to undermine integration at the level of practice.
Second, education and training programs in partner violence are now offered to virtually every professional constituency involved in the family court system: lawyers, judges, family service officers, child support enforcement personnel, mediators, guardians ad litem, and custody evaluators. Some argue that we are reaching the saturation point with training sessions. However, these training sessions are too often ineffective in changing professional practice. In part, this follows from the first problem: as long as competing literatures and bodies of research advocate competing norms and practices, responsible professionals can still adhere to the set that was more thoroughly and deeply embedded in their earlier professional training and orientation to their work. In part, the problem is that the training sessions, constrained by limited time and resources, are often superficial. They provide precepts and illustrate them with scenarios that professionals may find unrelated to their daily work. They often fail to take the critical step of helping or challenging professionals to look at their cases through new eyes and to use their new learning to discover and address abuse-related issues that previously escaped their attention.
Third, state legislatures have been remarkably responsive to calls for change. They have made partner violence a factor that must be considered in custody determinations [FN2] and have created presumptions against the grant of sole or joint custody to a confirmed abuser. [FN3] They have increasingly warned that mediation may not be mandated if one partner has used violence against the other. [FN4] They have supported the use of supervised visitation centers or supervised transfers in cases involving partner violence. [FN5] However, it is one thing to change the law or the rules at a formal level but quite another to achieve the real goals of reform in daily practice. Neither a legislative directive that partner violence be a factor in custody determinations nor a rebuttable presumption against granting custody to a batterer ensures that a guardian *275 ad litem will not be recommended or a judge will award custody to a parent whose past abuse has gone undetected, misdiagnosed, or disbelieved. If family service officers routinely pressure couples to mediate, and they fail to screen for, or to recognize, partner violence, a legislative veto of mandatory mediation in the presence of domestic violence is largely irrelevant. Without the integration of old and new paradigms at the levels of research and theory, without real change in the attitudes and practices of professionals, formal change can be a largely empty promise.
In the remainder of this article, I focus on some of the obstacles that confront the adult and child victims of partner violence as they move through a family court system where paradigms collide. To provide structure to this discussion, I have grouped these obstacles under three general headings: "Naming the Problem," "Identification," and "Safety." To provide a concrete focus, I have chosen custody and visitation assessments and adjudications to illustrate the obstacles and suggest how they might be addressed.
NAMING THE PROBLEM
At the level of research and theory, there are at least three separate bodies of learning that describe problematic intimate relationships, test hypotheses about the sources of the problems, and suggest, or measure the efficacy of, specific interventions. One set of literature deals with conflict, another with violence, and a third with abuse. A prime source of tension between specialists in partner abuse and the majority of mental health professionals who work within the family court system is that where the former see abuse, the latter tend to see conflict. A second difference that contributes to this tension is that before taking a relationship out of the conflictual category and putting it into the abusive category, the mental health professional looks for significant evidence of a one-sided pattern of physical violence. Those who specialize in abuse, on the other hand, understand abusive relationships as being first and foremost about power and control. They know that physical violence, while usually a potent residual source of power within the relationship, may play only a small part in the overall dynamic of control. A third related difference is that abuse specialists will always suspect that violence in a relationship indicates the presence of a power and control dynamic, whereas the mental health professional is quicker to associate violence with conflict between relatively evenly matched partners.
There are recent hopeful signs of bridge building between these disparate literatures and perspectives. In their 1996 account of mediating and negotiating marital conflict, Desmond Ellis and Noreen Stuckless differentiate between *276 conflict-initiated violence and control initiated violence and offer the crucial insight that whereas conflict-initiated violence may be relatively evenly distributed by gender, control initiated violence is much more commonly inflicted by men on women. [FN6] Murray Straus, a pioneer and leader in the empirical study of family violence but someone who is considered controversial within the domestic violence field because of his repeated findings that violence in families is equally distributed between men and women, has recently turned his attention to discrepant definitions of violence and the difference between physical violence standing alone and the set of coercive and controlling behaviors that add up to abuse. Straus notes that his own research "has been carried out from the perspective that defines violence exclusively as a physical assault." He recognizes that there is an important difference between violence that results in injury and violence that does not and that physical assaults "are not necessarily the most damaging form of maltreatment." [FN7]
Those whose primary focus is partner abuse, Straus suggests, use a broader definition of violence (or, I might add, use the term abuse rather than violence) to include "multiple modes of maltreatment and the resulting injury." [FN8] Straus concludes that "it would be ridiculous and unethical" to ignore "the psychological assaults, sexual coercion, subjugation, and economic situation of battered women, or the behavior of men who engage in these other forms of degradation." [FN9] On the other hand, he argues, it remains useful to investigate separately the prevalence of physical assault, especially for those who "tend to place ending physical violence at the top of their agenda, regardless of whether the offender is a man, woman or child." [FN10]
Despite hopeful signs that we will ultimately integrate the findings and theories of those who study conflict, violence, and abuse, tensions among and between them continue to have a direct impact on the family court system. In the context of custody and visitation, the explicit preference that children maintain significant contacts with both parents after separation and divorce and the tendency to see marital dysfunction as the product of conflict rather than abuse have led specialists in partner abuse to accuse family courts of ignoring abuse and its consequences for both adults and children.
The 1970s saw increasing divorce rates, a growing fathers' rights movement, a new body of popular literature favoring shared parenting, [FN11] and a new body of social science research assessing the impact of divorce on children. [FN12] The literature and the data on which it relied either asserted or was interpreted to assert two propositions, one negative and one positive. The negative proposition was that children who lose contact with their noncustodial parents after divorce are likely to experience problems. The positive proposition was that children resist the negative emotional fallout of their parents' divorces most successfully when they have generous ongoing access to both parents. On the *277 strength of these propositions, state legislatures and family courts mobilized to support shared parenting through joint custody, "friendly parent" provisions, and generous visitation for noncustodial parents.
Joint custody and friendly parent provisions are intimately related. Joint custody legislation has taken a variety of forms. The weakest form simply makes it explicit that joint custody is an option for judges to consider. A much stronger form authorizes joint custody when either party requests it, even if the other parent is opposed. A third variety authorizes joint custody only when both parents are in agreement but makes the willingness of one parent to accept joint custody a factor in determining which parent should receive sole custody. This disadvantages the "unfriendly" parent, the one who was unwilling to share custody. Some legislation creates a presumption in favor of joint custody, and while parental disagreement may rebut the presumption, the legislation may then favor awarding sole custody to the "friendly" parent who is willing to share. [FN13] According to the Family Violence Project of the National Council of Juvenile and Family Court Judges, in 1995, 10 child custody statutes included a public policy statement concerning a parent's ability to allow the child an open, loving, and frequent relationship with the other parent. Eighteen states included such provisions in the list of factors a court must consider when determining the best interest of the child. [FN14] Even in states without joint custody or friendly parent language in their statutes, many judges act on the belief that shared access is best for children and sole custody is best awarded to the parent most willing to share the child. [FN15]
In this context, if judges, mediators, or family service officers interpret abuse as conflict and attribute violence to conflict rather than to abuse, they may well conclude that shared parenting is still both feasible and desirable. The parents just need to set aside their own issues and hostilities and focus on the best interests of their children. Mediators, guardians ad litem, custody evaluators, and judges confusing abuse with conflict may also conclude that the parents who oppose shared parenting are acting vindictively and subordinating the interests of the children to their own rather than expressing their legitimate anxieties about their own and their children's ongoing safety. Ironically, within the friendly parent framework, a mother's proper concern about her abusive partner's fitness to parent will negatively affect her chance to win custody, not his. At the same time, the abuser's willingness to share the children, which assures his ongoing access to his partner and allows him to continue to manipulate and intimidate her, will, within the same framework, make him appear the more attractive candidate for custody.
New research is eroding the basis on which joint custody provisions rest. Earlier studies of shared parenting, which tended to reach positive conclusions, used samples composed of couples who were highly motivated and *278 committed to making joint custody work for their children. [FN16] Beginning in the early 1980s, and swelling in volume as the decade progressed, new studies have emphasized the limitations of those early findings and have raised a series of questions. [FN17] The most recent studies conclude that there is no convincing evidence that joint custody is either more or less beneficial than sole custody for most children. [FN18] More important, from the perspective of this article, is the finding that shared parenting is contraindicated if the relationship between the parents is characterized by ongoing conflict. As Janet Johnston summarizes this research,
Substantial amounts of access to both parents ... and frequent transitions between parents are generally associated with poorer children's adjustment in ... those divorced families where there is ongoing high conflict and continual disputes over the children. Where there has been a history of repeated physical violence between parents, these children are likely to be the most seriously disturbed. [FN19]
A crucial next step for policy makers is to absorb these new research findings and embed them in the governinglegal standards. At the same time, mental health professionals and legal actors in the family court system must absorb them into their practices and into their applications of current legal standards. Technically, no formal change in the governing legislation is necessary even in those states that have adopted a joint custody presumption. The presumption can always be rebutted by a showing that joint custody is not in the best interests of the child. It serves a valuable educative function, however, when state legislatures or appellate courts sound a cautionary note, as some are beginning to do. [FN20] Joint custody should be an option if both parents support it and if they are capable of cooperation, but it should have no presumptive superiority, and it should be disallowed if the parents' relationship is chronically conflictual or if one parent has abused the other.
Even this change, however, will not remedy the problems created by characterizing abuse as conflict and viewing custody disputes within the friendly parent framework. Even if joint custody awards are curtailed, the sole custodian must be chosen. And although states are increasingly amending their custody statutes to insert presumptions against the grant of joint or sole custody to parents who have abused their partners, if the couple's relationship has been misdiagnosed as conflictual rather than abusive, the abuser may seem the more appropriate custodian. This is particularly so if he is more willing to tolerate generous visitation by his partner. In this context, a "clinical typology" of "interparental violence in disputed custody divorces" (from an article coauthored by Janet Johnston and Linda Campbell) has heightened *279 the concerns of partner abuse specialists even as it has achieved wide circulation and influence within both the mental health and legal communities in the family court system. [FN21]
Johnston and her coauthor are clear about the limitations of their work. They describe the types as "preliminary exploratory hypotheses to be evaluated in future research, rather than as established findings." [FN22] The typology is derived from a theoretical understanding of interpersonal violence that appears not to incorporate the growing literature on the intrapsychic dynamics of batterers or the interpersonal dynamics of abusive relationships. [FN23] Interviewers were asked to assign couples to one of the predetermined types so that the model was impervious to correction based on any lack of fit between the typology and the couples' reports of their experiences. [FN24] There is no indication that the clinical inferences of the researchers were informed by any guidelines for interpreting the relationships when the partners' accounts were discrepant. [FN25] Finally, the article is based on two relatively small samples of divorcing parents. The authors acknowledge that these study participants may not be representative of the full range of abuse and violence in the divorcing population. [FN26]
The five types of violence hypothesized by Johnston and Campbell are (1) ongoing or episodic male battering, (2) female-initiated violence, (3) male-controlled interactive violence, (4) separation and postdivorce violence, and (5) psychotic and paranoid reactions. [FN27] In their 1993 article, Johnston and Campbell were not specific about the typology's implications for custody, noting only that "differential assessment of domestic violence is necessary when helping parents make post-divorce plans for the custody of their children." [FN28] In a subsequent article, however, Johnston offers a more detailed set of prescriptions, suggesting that "other factors being equal, sole or joint residential arrangements for children are contra indicated with a father who has engaged in ongoing or episodic battering, as they are with any parent who is psychotic or has paranoid delusions." [FN29] In type 2 cases (female-initiated violence), fathers should be encouraged to pursue primary custody of their children; [FN30] in type 3 cases (male-controlled interactive violence), both parents are poor role models, but "the parent who can better provide a violence-free environment should be considered as the potential primary caretaker for the child," [FN31] while in type 4 cases (separation and postdivorce violence), "a range of custody plans, including joint physical custody, are appropriate." [FN32]
The chief concern of partner abuse specialists is that Johnston's typology will encourage serious underestimation of the number of abusive relationships and the dangers they pose to abused partners and children. [FN33] The problem starts with the description of ongoing or episodic male battering as the category that "most closely resembles the battering spouse/battered wife syndrome *280 which has been well described in the literature." [FN34] Johnston reports that the violence in these cases "rises to dangerous, life-threatening levels." [FN35] Does this mean that if the violence has been less frequent than "ongoing or episodic" suggests or is less severe than life threatening, the relationship is not a battering or abusive one? Johnston also reports that the women who are victims of battering "did not generally provoke, initiate or escalate the physical abuse, at least not intentionally" and tended to be "intimidated and cowed" unless they "did not tolerate the abuse" and left the relationship early. [FN36] This suggests that women who choose to signal their lack of tolerance for abuse not by leaving early but by fighting back, verbally or physically, for some period of time, will not be viewed as victims of abuse. Their relationships will then be assigned to other categories.
The category of male-controlled interactive violence is particularly troubling because it describes a controlling male who is prepared to use force to gain compliance and who escalates his use of force if his partner resists his efforts at control. Yet, this man is not viewed by Johnston as a batterer. [FN37] When she adds that violence in these cases arises primarily out of "a conflict of interest or disagreement" [FN38] between the spouses, it seems plausible that the conflict might be precisely about the man's desire for control. When she talks about mutual verbal provocation [FN39] in these relationships, the echo of the justification so commonly used by batterers, that their partners provoked them by asserting independence or failing to comply with (often unreasonable) demands, makes Johnston's account uncomfortable reading for those whose primary constituencies are perpetrators or victims of battering.
Finally, Johnston's willingness to recommend shared parenting in cases of separation and postdivorce violence, seems to rely on the assumption that violence in these cases is provoked by the stress of separation and will be time limited. [FN40] This conclusion belies the reality of many relationships in which longstanding abuse, primarily of a nonphysical nature, is supplemented more aggressively with physical violence when the partner signals her determination to leave the relationship. When Johnston suggests that "this violent separation related behavior can become the crucible within which a negative reconstruction of the identity of the ... spouse is made, casting a long shadow over the postdivorce relationship of these couples," [FN41] she risks discrediting the spouse whose new understanding of the relationship is now more reality based after an earlier period in which her commitment to the relationship led her to minimize or deny the abuse or to take inappropriate responsibility for it. When she speaks of the intolerable loss and sense of abandonment experienced by some partners at the time of separation and divorce, [FN42] the partner abuse specialist cannot help but think of the men who have killed their partners, their children, and not infrequently themselves in the grip of precisely *281 these emotions. Contemplating shared custody, or even unsupervised visitation, in cases involving "one, two or several incidents" of violence, including "sometimes very serious ones," [FN43] seems, from this perspective, downright irresponsible, at least without a lengthy cooling off period during which the violent partner's behavior can be observed and an extremely thorough assessment made of the potential for further violence.
As this clash of perspectives demonstrates, constructive dialog is desperately needed on two fronts. Some of the conversations must be between researchers, like Johnston, who approach these issues from the perspective of conflict, and researchers who approach them from the perspective of abuse. At the same time, conversations are needed between the practitioners who have tended to ground their practices in one body of research and practitioners who have grounded them in the other. In both cases, we need to move beyond the professional antagonism that locks people of good will ever more firmly into their starting positions to a professional collaboration that enables all the participants to venture toward a larger, richer, and more differentiated understanding.
There are two aspects to identification: identifying abuse and identifying its consequences. The first aspect involves screening on the part of the professional and disclosure on the part of the perpetrator or victim. The professional must be able to ask the right questions, signal his or her ability and willingness to hear the answers to those questions, create a climate of safety and trust in which the person questioned will be able to answer honestly, and understand the significance of the answers as indicators or direct evidence of abuse. The second aspect involves understanding how abuse affects those who suffer it. It involves recognizing the symptoms associated with abuse and attributing them appropriately to their source. Professionals within the family court system must be able to manage both aspects of identification for adults and children. Only proficiency in this arena will help answer the question of whether a particular case is one that can be safely managed within the paradigm of conflict or must instead be treated as falling within the paradigm of abuse.
There are many reasons why adult victims of abuse may not talk about their experiences or may delay talking about them until disclosure is essential *282 to their own or their children's safety. Acceptance of at least some violence as the norm in intimate relationships; fear of what the abusers will do to them or their children, family members, homes, or pets; loyalty to the abusers; conviction that the abusers want to and are trying to stop the violence; determination to solve the problem without outside intervention; economic dependence on the abusers' incomes; unsuccessful prior attempts to enlist help; distrust of helping agencies; shame; and certainty that those listening do not want to hear the story - it is a powerful list.
Even when victims of abuse do disclose, they are not always believed. When a woman asks a court for a restraining order, she is usually either wearing the marks of violence or telling a story so detailed and so immediate that her credibility is readily established. In other proceedings, however, a victim may disclose abuse for the first time in the context of a separation, divorce, or custody dispute. There may be no precipitating act of violence, and the stories may be heard as an effort to perpetuate the conflict that has poisoned the relationship or to gain leverage in the contest over money and children. In this context, credibility is harder to earn.
One problem with the generic training sessions in domestic violence that have become a staple of the family court system is that they tend to reinforce somewhat stereotyped notions of what it means to be a batterer or a victim. These stereotypes in turn foster confidence among professionals that they will recognize abuse and its perpetrators when they see them and that they will know how to respond when the time comes. In fact, however, much abuse goes undetected. In part, as I have already argued, this is because professionals operate within frameworks that predispose them to reinterpret abuse as something else. In part, the problem is that the reality of abuse is more complex and variable than basic training sessions in partner violence acknowledge and more commonplace than most professionals are comfortable admitting.
When it comes to identifying the consequences of abuse for adult victims, there is almost 20 years of research and a well-developed literature from which professionals can draw. Battered women's syndrome remains a contested term, but this is largely because its incorporation into law, especially in defending women against criminal charges, has rendered it vulnerable to mischaracterization and caricature and has resulted in definitions that are both over and underinclusive. Outside this contested terrain, however, there is a high level of consensus among mental health researchers and clinicians about the range of physical and emotional sequelae women experience when they are subjected to the patterns of controlling and coercive behavior, including physical violence, which add up to abuse. [FN44]
One familiar cluster of symptoms is associated with post-traumatic stress disorder. [FN45] The impact of abuse at the hands of an intimate partner, however, *283 can go beyond psychological distress or dysfunction. The victim's assumptions about her own vulnerability and safety are likely to change. She may feel powerless to control the direction of her life. She often continues to blame herself for the abuse. She may feel that she can no longer trust her own perceptions and judgments. She may come to tolerate mistreatment that seems intolerable to others, and she may appear crazy or masochistic to others because the abuse creates in her the cognitive inconsistency of both fearing and loving her partner, whose behavior is itself inconsistent. [FN46] In the relational realm, victims of abuse often experience strong ongoing attachment to and dependency on their abusers. [FN47] On the other hand, they may experience significant difficulties in developing or trusting other relationships, including relationships with professionals. [FN48]
Because the physical safety and emotional security of both the adult victim and her children can depend so crucially on the outcome of family court proceedings, it is critically important that adult victims be encouraged to disclose to their lawyers, to family service officers and mediators, to guardians ad litem and custody evaluators, and ultimately to judges. It is equally important that they be assisted in building the record that will substantiate their allegations and establish their credibility. Finally, it is important that those who assess their credibility do so understanding that an outsider's instinctive sense of the situation may be inaccurate, influenced by aspects of the victim's self presentation that are themselves the product of the abuse she has suffered.
For the adult victim who can afford legal representation, the lawyer should take the lead in this process of identification and should be his or her client's advocate in all the contexts in which her safety may be at issue and her credibility on the line. When the lawyer does not take the lead, or when the victim is not represented, there is a separate responsibility lodged directly in the other actors with whom the victim comes in contact. Victims will not necessarily take the initiative in sharing a history of abuse even with their lawyers, let alone with others in the system, which means that the onus of inquiry often falls on these others. [FN49] All must screen for abuse and must recognize that they can do so effectively only if they offer privacy for the initial disclosure [FN50] and safety in its aftermath. Safety in this context must include assurances about the subsequent sharing and useof the disclosed information. [FN51]
Screening for abuse is not something most professionals have been trained to do, and it is not a simple task. Listeners must signal an openness to hearing the story, however painful it is. They must ask questions that avoid generalities and labels that may be off putting. Many women, for example, resist describing themselves as abused or battered. The professional must ask questions across the range of emotionally, physically, and sexually abusive *284 behaviors in order not to miss the abusive context of a relationship in which physical violence has played only a small part.
A victim may be incapable of delivering a coherent account of the abuse she has experienced, especially the first time the subject is broached and especially if she is not practiced in disclosure. The telling may trigger intolerably painful memories, or the memories may be fragmented and incomplete. The professional needs an understanding of the victim's ambivalence toward her abuser, the low self esteem and self blame that lead her to take responsibility for the abuse, or her reluctance to acknowledge the toll it is taking on her children, in order to arrive at a balanced understanding of the incidents the victim is describing. It may take patient work to piece together the truth of the victim's situation.
Given the obstacles an abused client is likely to encounter within the family court system if she tries to limit her partner's access to their children, it is also crucial for her lawyer or others to think strategically with her about how to build the record that will substantiate her claims of abuse. A preliminary study conducted in 1995 suggested that this was an area in which family lawyers often let their clients down. [FN52] Calls to 911; police reports; restraining orders with their supporting affidavits; convictions and criminal records; medical records; photographs of injuries or of property damage; the affidavits of neighbors, coworkers, friends, and family members; answering machine tapes or notes with angry messages or threats; journals kept by the client or her children; detailed records of problems with provisional arrangements for child transfer all these and more may provide actors in the family court system with the documentation they need to take the abuse seriously.
The adult victim's experience of abuse may affect her credibility in a number of significant ways. First, her reluctance to disclose, inconsistencies or gaps in her story, or the incremental way in which she shares it - all produced by the traumatic nature of her memories may raise suspicions that she is fabricating. If her interlocutor seems to question her story or to suggest her own complicity in the abuse, the vulnerability that leads her to doubt her own perceptions and blame herself for her situation may leave her unable to assert her own reality and her abuser's responsibility. If she expresses anger or even rage toward her partner, her listener may discredit her account as the product of hostility or vindictiveness. If she directs that anger and rage toward safer targets, which is not uncommon, she may alienate the very people on whose assistance she depends.
Many of these difficulties illustrate a more generic problem: the tendency to attribute to the victim personality traits that are not permanent aspects of her character but are instead the sequelae of abuse. Hysterical, volatile, unreliable, *285 confused - all these adjectives become liabilities in the context of a custody proceeding, whether the issue is veracity in a mother's description of her past relationship or her capacity to take primary responsibility for her children in the future. The opposite problem arises when the listener, versed in the symptoms of post-traumatic stress disorder, discounts the victim's ongoing fear and anxiety about her partner's behavior, attributing them to past trauma rather than to the very real threat of escalating violence in the volatile context of separation and divorce. The victim herself may have difficulty deciding how much of her fear and vigilance is rational and how much attributable to the psychological damage her abuser has inflicted. The problem is compounded for those who seek to understand the experience secondhand and who lack the victim's intimate knowledge of her abuser, the patterns of his behavior, and his potential for harm.
Children too have reasons to conceal violence between their parents. Sometimes the primary motivation is loyalty, either to the perpetrator or to a family norm of secrecy. Children can also be silenced by shame. Sometimes children are threatened with harm if they tell, or they simply feel unsafe sharing the information, particularly if they have no reason to trust the persons asking the questions. Some children fear, legitimately, that if they talk about violence in their homes they will be taken away from both their parents. Sometimes children deny or minimize the violence, following the lead of one or both parents. Sometimes they assume, often based on experience, that they will be disbelieved by adults who are themselves caught up in denial or avoidance. A particularly painful version of this disbelief, not uncommon in the family court system, occurs when a professional concludes that the child has been persuaded or coerced by one parent into corroborating false allegations of abuse by the other. [FN53]
A crucial development for children in recent years has been research into the connections between partner abuse and child abuse and the recognition that exposure to parental violence is, in and of itself, injurious to children. The first published articles on the problems of children exposed to family violence did not appear until 1975. By 1980, there were only 3 articles published. Even in 1998, a literature search turned up only 56 articles in peer reviewed journals, supplemented by a few review articles and a few book chapters. [FN54] Currently, only four books focus on the children of battered women, the first published in 1990 and the last in 1998. [FN55] Although the field is so new that many important questions remain, there are consistent findings *286 sufficiently impressive that many states have enacted presumptions against the grant of joint or sole custody to confirmed partner abusers.
First, the research confirms a significant connection between partner abuse and child abuse, with studies showing overlaps from 20% to 100%, with a median of 59%. [FN56] Second, it demonstrates that children witness much more violence in their homes than parents report. [FN57] Third, it documents a significant array of problems - physical, developmental, emotional, and behavioral - associated with witnessing abuse. [FN58] Some of the studies have also suggested or identified variables that may mitigate the impact of partner violence on children who witness it, including the severity and frequency of the violence, the level of stress experienced by the mother and her capacity to provide appropriate parenting, whether the child was verbally or physically abused, and other characteristics of the child or of the environment that may provide a buffer.
In the family court context, the consulting psychologists hired by parents or the guardians ad litem and custody evaluators assigned by the court play a pivotal role in protecting children's interests. The same 1995 study that criticized lawyers for their handling of domestic violence in custody cases also reported that "custody evaluators and guardians ad litem were the professionals least trained about domestic violence of any actors in the civil justice system." The judges, attorneys, advocates, court administrators, court services personnel, and law professors interviewed for the study reported that evaluators and guardians ad litem were "heavily influenced by the social and legal policies that facilitate contact with the noncustodial parent without regard to the risks attendant upon contact or relationship." The interviewees also stated that the guardians ad litem were "not guided as much by law as by their training and predilections about appropriate post-separation custodial arrangements. Many appear[ed] to marginalize domestic violence as a factor with significant import for abused adults and children in custodial outcomes." [FN59] Similar concerns were expressed in a preliminary Massachusetts study conducted in 1998. Interviewed respondents, all lawyers or advocates working with battered women in the family court context, highlighted their feelings that guardians ad litem did not view domestic violence as serious, did not understand the risks associated with mediation and couples' counseling in the face of abuse, did not appreciate that abusers can be skilled in manipulating the courts, allowed themselves to be manipulated by abusive partners, and tended to pathologize victims rather than understanding how they were affected by their experiences of abuse. The respondents also reported that many *287 guardians ad litem lacked the clinical training needed to assess and respond to developmental and trauma issues among the children they interviewed. They noted that guardians ad litem were often inattentive to safety issues for mothers or children in their recommendations for visitation and custody. [FN60]
The problems identified in both these reports are products of the competing paradigms and values identified in the first part of this article. Guardians ad litem and custody evaluators, along with many consulting psychologists who belong to the same professional community, are trained to understand family violence in terms of conflict and the needs of children in terms of generous access to both parents. Under attack from those whose perspective is partner abuse and its negative impact on children, it must be tempting for mental health professionals to circle the wagons and defend the status quo. Instead, we must integrate the concerns of both communities, implementing protocols and recommending outcomes that will protect abused parents and their children from further violence and trauma, while continuing to foster strong relationships between children and those parents who can be counted on to treat their former partners and their children with respect, even if sources of conflict remain.
These ambitious goals require more than superficial training for those who serve as guardians ad litem or custody evaluators. Some states are moving toward requiring domestic violence training for all guardians ad litem, [FN61] while other courts have informally adopted the practice of appointing specialists as guardians ad litem in cases where abuse is alleged. [FN62] The same requirements could be imposed on custody evaluators. While the idea of using specialists has its attractions, and may be an expedient interim measure, it has at least one major limitation. It allows the nonspecialist to lag behind in his or her professional development and would inhibit the identification of abuse in cases where an investigation is initiated before any formal allegation of abuse has been made. Remarkably consistent findings that at least 50% of contested custody cases involve physical violence between the partners [FN63] suggest that every guardian ad litem and evaluator needs expertise in partner abuse even if some of that violence is attributable to conflict rather than abuse. The better alternative, therefore, if the two communities can overcome their mutual suspicion and hostility, is for regular and ongoing lines of communication to be opened between them, enriching the understanding of both and facilitating the transformation of practice. Until these bridges can be built, it is inappropriate for judges to rely heavily on the recommendations of guardians ad litem or evaluators in cases that raise issues outside their realm of expertise. [FN64]
One reason passions run high in these debates is that the stakes are high. Women, children, and men die each year in abuse-related homicides. Often, the children are the continuing link between an abused partner and the abuser, under court-ordered arrangements that guarantee the abuser's access to his former family and their vulnerability to him. In Boston within the last few months, a father used a visitation transfer as an opportunity to slash his former partner repeatedly in the face and neck even though she had taken the precaution of arranging the transfer at a busy subway station and had brought a male friend with her for extra security. The father was also hospitalized with self-inflicted stab wounds. [FN65] In Washington State just before Christmas, a father shot and killed his former wife and their two-year-old daughter, Carli, in a car parked outside a visitation center. Staff at the center said that in interviewing the parents they had detected no more signs of danger than in "any other of our caseload." The father later killed himself when he was stopped by police. [FN66]
Of course, not every case involving the breakup of an abusive relationship ends this way. And, sadly, some cases will, no matter how the family court system responds. But every lawyer or advocate who works closely with abused women, and every mental health professional who specializes in assisting victims of and witnesses to violence in the home, lives in fear that their clients will be next to be maimed or killed or to witness the assault or death of someone they love. As professionals, they know that they cannot always save their clients. But, their anguish at participating in processes that leave their clients unprotected or, worse, put them at increased risk, is both understandable and appropriate.
Some of the risk is associated with the process itself. Any situation that brings the parties face to face is an opportunity for violence: a mediation session, joint interviews with a guardian ad litem, and even a court hearing, although formal settings often feel safer than informal ones and the courthouse offers some security. Situations that require the parties to discuss or negotiate their differences risk stirring up explosive feelings that may precipitate subsequent violence. In truly dangerous situations, it is even risky for the abuser to know when and where he can locate his partner.
The greatest risk to abused parents and their children is associated with case outcomes - the judicial orders or judicially endorsed settlements that establish custody and visitation regimes and schedules. Since current practice often assumes that the violence in a relationship has been driven by conflict, it seems logical that once the parties separate, and their residual interactions are carefully structured, violence need no longer be feared. From the *289 perspective of abuse, however, the period following the separation is a period of extreme volatility and increased risk. [FN67] The abuser is forced to acknowledge his loss of control over his partner and his loss of the relationship itself, on which he may be profoundly dependent.
Every actor in the family court system should look at every case assuming that it may involve an abusive relationship and the potential for violence. He or she must then ask: (1) How will I find out if violence is a possibility here? (2) How will I gauge the level of risk involved? and (3) What steps can I take to get my job done and contribute to an appropriate outcome while keeping everyone safe? Gauging the level of risk is an imperfect science, but compiling a full record of past violence and current threats is a first step. Weighing carefully the concerns of those who have experienced the violence firsthand is a second step, and seeking the input of specialists is a good way to develop further expertise. Counselors with batterers' intervention programs and domestic violence specialists in probation departments are particularly good sources because of their extensive experience. Developing safety plans is also an imperfect science, but victims of abuse have their own experiences to draw from. There are also those who do safety planning daily on a professional basis who can lend their expertise. The task requires both experience and expertise. Even experts must avoid complacency. The visitation center where Carli and her mother died had carefully developed protocols. But there was a flaw. Those protocols allowed Carli's father to leave the center after he dropped her off, with no way to check that he had left the neighborhood. He had to wait only half an hour before Carli's mother came to pick her up. If he had been required instead to stay on the premises, under supervision, for half an hour after Carli's mother retrieved her, they would have made a safe getaway. If even experts can get it wrong, learners need all the support they can get.
Security begins with knowing that every professional in the family court system has incorporated a careful risk assessment into his or her analysis of the case and recommendations for its disposition. It rests on the willingness of those same actors to make safety a priority even when safety is inconsistent with parental access. It rests on knowing that the community has resources, like supervised visitation programs, that can provide safe parental access even when partner access is unsafe and that involved professionals know about those resources and are ready to recommend them. It grows with knowing that any negotiated settlement has, insofar as possible, the genuine assent of the abused partner and the independent approval of someone looking out for the children's welfare and that it meets basic safety requirements. Security grows further with the knowledge that judges are ready to craft orders with close attention to violence-sensitive recommendations and concerns *290 and are willing to use all the flexibility and creativity the underlying legal standards allow. Finally, it rests on the confidence that if the disposition of the case proves inadequate, if it promotes or allows further abuse, the individual who comes back to court seeking increased safety through modification or enforcement of an order will be given careful and respectful attention.
It would be naive to expect that the complex community of professionals who make up the family court system would already have integrated fully new learning about partner abuse and new norms governing the handling and disposition of cases involving abusive partners and their adult and child victims. It would be equally naive to imagine that community embracing new learning and new norms without expressing some uncertainty and some reservations. On the other hand, it would be naive to expect that the community of those who serve battered partners and their children would wait patiently for integration to occur, when their clients remain at risk and when, in their view, change is long overdue. The political successes of battered women's advocates, which have resulted in legislative reform and important expressions of organizational commitment, may, paradoxically, have impeded change at the level of daily practice where professionals feel bullied by a political agenda that they have not yet adopted as their own at either a cognitive or an emotional level.
In this charged atmosphere, it is easy for the different constituencies to take sides, for each side to accuse the other of bad faith, and for neither side to listen with an open mind to what the other has to say. Unaddressed, this dynamic can result in each constituency talking only to itself, because the risks of being mischaracterized or ignored by the other are too great and the chances of genuine communication across party lines too small. And yet, if integration is to occur, these barriers must be broken down and safe spaces created for professional collaboration. With more attention to the conditions under which collaboration can flourish, the competing paradigms can surely be brought to mesh instead of colliding and the family court system can be made a safer place for those seeking to escape abuse.
Clare Dalton is a full professor at Northeastern University School of Law and executive director of the university's Domestic Violence Institute. The institute is an interdisciplinary education, research, and service organization that addresses the impact of domestic violence on the lives of men, women, children, and the professionals who work with them. She is currently coauthoring a teaching text, Domestic Violence and the Law, which will be published in the year 2000 by Foundation Press.
[FN1]. Advocates for these vulnerable constituencies within the family court system have achieved notable successes in what is still, after all, a relatively short time span. In these efforts, they have been supported by an accumulating body of information about the nature of abusers and of abusive relationships, accumulating evidence about the linkages between partner and child abuse, and accumulating research about the impact of abuse on both adult victims and the children who witness violence. They have been ably and consistently supported by such national entities as the National Council of Juvenile and Family Court Judges, the American Bar Association, the American Medical Association, and the American Psychological Association, all of which have endorsed and adopted the new learning in their reports and recommendations. See, e.g., MODEL CODE ON DOMESTIC AND FAMILY VIOLENCE (National Council of Juvenile and Family Court Judges, 1994); D. Goelman and R. Valente, WHEN WILL THEY EVER LEARN? EDUCATING TO END DOMESTIC VIOLENCE (ABA Comm. on Domestic Violence, 1997); THE IMPACT OF DOMESTIC VIOLENCE ON YOUR PRACTICE (D. M. Goelman et al., eds., ABA Commn. on Domestic Violence, 1996); Howard Davidson, THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN: A REPORT TO THE PRESIDENT OF THE AMERICAN BAR ASSOCIATION (ABA, 1994); DIAGNOSTIC AND TREATMENT GUIDELINES ON DOMESTIC VIOLENCE (Am. Med. Assn., 1994); VIOLENCE AND THE FAMILY: REPORT OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION PRESIDENTIAL TASKFORCE ON VIOLENCE AND THE FAMILY (Am. Psychological Assn., 1996).
[FN2]. For a listing of statutes in 35 states requiring courts to consider evidence of domestic violence or abuse of a spouse in custody or visitation determinations, see, the Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 225 227 (1995).
[FN3]. In some states, the presumption is against the award of sole or joint custody to perpetrators of domestic violence. See, e.g., Del. Code Ann. tit. 13, § 705A (1994); La. Rev. Stat. Ann. § 9:364(A) (West 1994); Okla. Stat. Ann. tit. 10, § 21.1(D) (West 1995); N.D. Cent. Code § 14 05 22.3 (1993). In others, the presumption is only against grants of joint custody to perpetrators of domestic violence. See, e.g., Fla. Stat. Ann. § 61.13(2)(b)(2) (West 1995); Idaho Code § 32 7178(5) (1994); Minn. Stat. Ann. § 518.17 subd. (2)(d) (West 1995); Wis. Stat. Ann. § 767.24(2)(b) 2.c (West 1994). Delaware and Florida include an additional presumption that a child not reside with a perpetrator of domestic violence. Del. Code Ann. tit. 13, § 705A(b) (1994); Fla. Stat. Ann. § 61.13(2)(b)(2) (West 1995).
[FN4]. See A. E. Gerenscer, Family Mediation: Screening for Domestic Abuse, 23 Fla. St. Univ. L. Rev. 43, 51 n. 54 (1995); National Center on Women and Family Law, State Laws Exempting Battered Women From Mediation (1993).
[FN5]. See, e.g., Ariz. Rev. St. Ann. § 25 338 (1987); Ill. Stat. Ann. ch. 20, para. 505/5 (Smith Hurd 1991); Minn. Stat. Ann. § 256F.01 .08 (West 1992). The National Council of Juvenile and Family Court Judges endorses supervised visitation in section 406 of its 1994 Model Code on Domestic and Family Violence:
The insert appropriate state agency shall provide for visitation centers throughout the state for victims of domestic or family violence and their children to allow court ordered visitation in a manner that protects the safety of all family members. The state agency shall coordinate and cooperate with local governmental agencies in providing the visitation centers.
[FN6]. Desmond Ellis and Noreen Stuckless, MEDIATING AND NEGOTIATING MARITAL CONFLICTS 34 46 (Sage, Thousand Oaks, CA, 1996).
[FN7]. Murray A. Straus, The Controversy over Domestic Violence by Women: A Methodological, Theoretical, and Sociology of Science Analysis, 3 (Family Violence Research Program of the Family Research Laboratory, University of New Hampshire, 1998).
[FN8]. Id., at 13. Significantly, the instrument developed by Straus and others to measure the presence of physical violence in intimate relationships is called the Conflict Tactics Scale. It has been criticized as an inappropriate instrument for measuring the presence of abuse in relationships, and alternative instruments have been proposed. Unfortunately, none of the alternatives has yet achieved the level of replicability and reliability associated with the Conflict Tactics Scale. See, e.g., M. F. Shepard and J. A. Campbell, The Abusive Behavior Inventory: A Measure of Psychological and Physical Abuse, 7 J. OF INTERPERSONAL VIOLENCE 291 305 (1992).
[FN9]. Desmond Ellis and Noreen Stuckless, MEDIATING AND NEGOTIATING MARITAL CONFLICTS 13 (1996).
[FN10]. Id., at 14.
[FN11]. See, e.g., Mel Roman and William F. Haddad, THE DISPOSABLE PARENT: THE CASE FOR JOINT CUSTODY (Holt, Rinehart & Winston, New York 1978); Miriam Galper Cohen, COPARENTING: SHARING YOUR CHILD EQUALLY: A SOURCE BOOK FOR THE SEPARATED OR DIVORCED FAMILY (Running Press, Philadelphia 1978); Isolina Ricci, MOM'S HOUSE, DAD'S HOUSE: MAKING SHARED CUSTODY WORK (MacMillan, New York 1980); Ciji Ware, SHARING PARENTHOOD AFTER DIVORCE: AN ENLIGHTENED CUSTODY GUIDE FOR MOTHERS, FATHERS AND KIDS (Viking Press, New York 1982).
[FN12]. Particularly influential in this context was Judith S. Wallerstein and Joan B. Kelly, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980).
[FN13]. For a more detailed discussion of these different options, see J. Schulman and Valerie Pitt, Second Thoughts on Joint Child Custody: Analysis of Legislation and Its Implications for Women and Children, 12 GOLDEN GATE L. REV. 538, 546 553 (1982).
[FN14]. The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 201 (1995).
[FN15]. Joan Zorza, "Friendly Parent" Provisions in Custody Determinations, 26 CLEARINGHOUSE REV. 921, 923 (1992).
[FN16]. Janet Johnston, Children's Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making, 33 F.C.C.R. 415 (1995).
[FN17]. Were the beneficial outcomes due to joint custody itself, for example, or to the fact that parents managing shared parenting were more cooperative and psychologically healthier or better educated and wealthier? Should mental health professionals recommend, or courts order, joint custody when one or both parents oppose it? Id., at 416.
[FN18]. Id., at 421.
[FN19]. Id., at 421.
[FN20]. For an account of 11 states in which a cautionary note specific to cases involving domestic violence is sounded through legislation, see the Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 200 201 (1995). California, the first state to adopt a joint custody presumption in 1979, (Cal. Civ. Code § 4600.5(a) (West 1979)) repealed it in 1989 (Cal. Civ. Code § 4600(d) (West Supp. 1989)). Utah, one of the last states to adopt a joint custody presumption, in 1988 (§ 30 3 10.2(1)), repealed it only two years later in 1990. For an account of the legislative histories in these two states, see Thronson v. Thronson (810 P.2d. 428 (Utah App. 1991)).
[FN21]. J. Johnston and L. Campbell, A Clinical Typology of Interparental Violence in Disputed Custody Divorces, 63 AM. J. ORTHOPSYCHIATRY 190 (1993). For an example of the typology's influence, see the visitation risk assessment guidelines distributed nationally by the publishers of this journal: Arline Rotman et al., Domestic Violence Visitation Risk Assessment (Association of Family and Conciliation Courts, 1984).
[FN22]. Id., at 193. This caveat has not always been heeded by those who have enthusiastically adopted their framework.
[FN23]. Two recent examples of highly readable books on battering men and battering relationships, authored by respected researchers in the field, are Donald G. Dutton, THE BATTERER (Basic Books, New York 1995), and Neil S. Jacobson and John M. Gottman, WHEN MEN BATTER WOMEN: NEW INSIGHTS INTO ENDING ABUSIVE RELATIONSHIPS (Simon & Schuster, New York 1998).
[FN24]. J. Johnston and L. Campbell, A Clinical Typology of Interparental Violence in Disputed Custody Divorces, 63 AM. J. ORTHOPSYCHIATRY 190, 193 (1993).
[FN25]. See, e.g., R. P. Dobash, R. E. Dobash, K. Cavanagh, and R. Lewis, Separate and Intersecting Realities: A Comparison of Men's and Women's Accounts of Violence against Women, 4 VIOLENCE AGAINST WOMEN 382 (1998).
[FN26]. J. Johnston and L. Campbell, A Clinical Typology of Interparental Violence in Disputed Custody Divorces, 63 AM. J. ORTHOPSYCHIATRY 190, 193 (1993).
[FN27]. Id., at 193 198.
[FN28]. Id., at 199. The authors do conclude that mediation is clearly inappropriate in cases of ongoing or episodic male battering or in cases involving psychotic and paranoid reactions. They suggest it can probably be managed, with appropriate adaptations, in other cases a finding clearly at odds with the consistent recommendations of partner abuse specialists. Id.
[FN29]. Janet Johnston, Domestic Violence and Parent Child Relationships in Families Disputing Custody, AUST. J. OF FAM. L. 12, 21 (1995).
[FN30]. Id., at 21.
[FN31]. Id., at 22.
[FN33]. For a more thorough critique, see R. L. Bancroft, A Critical Look at Janet Johnston's Typology of Batterers, 4 DOM. VIOLENCE REPTR. 1 (1998).
[FN34]. J. Johnston and L. Campbell, A Clinical Typology of Interparental Violence in Disputed Custody Divorces, 63 AM. J. ORTHOPSYCHIATRY 190, 193 (1993).
[FN35]. Id., at 194.
[FN37]. Id., at 195 196.
[FN38]. Id., at 195.
[FN40]. Id., at 196 197.
[FN41]. Id., at 197.
[FN44]. One respected authority on this subject is psychologist Mary Ann Dutton, from whose work the following summary borrows. Mary Ann Dutton, EMPOWERING AND HEALING THE BATTERED WOMAN: A MODEL FOR ASSESSMENT AND INTERVENTION (Springer, New York 1992). Another is Judith Lewis Herman, whose book TRAUMA AND RECOVERY (Basic Books, New York 1992) draws powerful connections between the experiences of women in long term abusive relationships, combat veterans, and prisoners of war.
[FN45]. A victim of past abuse may experience disproportionate fear and terror triggered by events that remind her of abusive incidents. She may find that at a physical level these stimuli result in overarousal a pounding heart or difficulty breathing. She may have other somatic complaints, either directly associated with the physical abuse she has suffered or produced by the ongoing stress that results. She may suffer intrusive flashbacks or dreams, which essentially force her to reexperience the abuse, or she may develop avoidance responses that assist her in minimizing or denying awareness of her abuse or numbing her feelings about it. She may experience heightened anxiety and find herself hypervigilant and constantly suspicious. She may be overwhelmed with anger or rage or, on the other hand, with grief and depression. She may have difficulty sleeping or concentrating, find her functioning impaired, or take refuge in addictive behaviors. She may labor under the burden of shame or lowered self esteem. Mary Ann Dutton, EMPOWERING AND HEALING THE BATTERED WOMAN: A MODEL FOR ASSESSMENT AND INTERVENTION, 59 65 (1992).
[FN46]. Id., at 65 68.
[FN47]. This mirrors the response of kidnap victims or political prisoners to their captors. The phenomenon has been called traumatic bonding and has been analogized to the similar Stockholm syndrome reported among hostage survivors. See id., at 57 58. See also D. Dutton and S. Painter, Traumatic Bonding: The Development of Emotional Attachments in Battered Women and Other Relationships of Intermittent Abuse, 6 VICTIMOLOGY 139 155 (1981), and F. M. Ochberg, Victims of Terrorism, 41 J. OF CLIN. PSYCHIATRY 72 74 (1980).
[FN48]. Mary Ann Dutton, EMPOWERING AND HEALING THE BATTERED WOMAN: A MODEL FOR ASSESSMENT AND INTERVENTION, 69 (1992); Judith Lewis Herman, TRAUMA AND RECOVERY 136 (1992).
[FN49]. A 1995 report criticized the bar for its failure to handle appropriately domestic violence issues that arise in the context of custody cases. The problem begins, the report suggested, with a failure to identify clients with experiences of abuse. The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 213 (1995).
[FN50]. A mediator who never interviews the parties separately or a guardian ad litem who conducts only joint interviews with a child's parents cannot expect to hear the abused partner's account of abuse in the relationship.
[FN51]. Different actors have differing amounts of discretion, of course, over the disclosure of information. A victim's lawyer can absolutely assure his or her client that information will not be shared outside their relationship unless the client approves both the content and the context of the disclosure. The mediator who is persuaded that a history of abuse disclosed by its victim makes mediation inappropriate may be able to terminate mediation without explicitly informing the abusive partner that the decision is based on the partner's disclosures. The guardian ad litem who is also a social worker, on the other hand, may be a mandated reporter with respect to child abuse over and above his or her responsibility to act in the best interests of the child. If abuse is to provide the basis for a judicial ruling, then it must inevitably become part of a public record. However, even when there is little or no room for maneuver about what must be disclosed, there may still be important discretionary decisions about the process and context of disclosure, and this residual discretion should always be used to protect the safety of victims.
[FN52]. The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 214 (1995).
[FN53]. One author has given a label to the supposed phenomenon of mothers intentionally alienating their children from their fathers in divorce cases, pathologizing it under the rubric parental alienation syndrome. R. Gardner, THE PARENTAL ALIENATION SYNDROME: A GUIDE FOR MENTAL HEALTH AND LEGAL PROFESSIONALS (Creative Theraputics, Cresskill, New Jersey 1992). However, "no research data support even the existence of such a syndrome or the claim that false allegations of abuse are prevalent in divorce cases.... In fact, just the opposite seems to be true." P. G. Jaffe and R. Geffner, Child Custody Disputes and Domestic Violence: Critical Issues for Mental Health, Social Service, and Legal Professionals, CHILDREN EXPOSED TO MARITAL VIOLENCE: THEORY, RESEARCH AND APPLIED ISSUES, 371, 380 81 (G. W. Holden, R. Geffner, & E. N. Jouriles, eds., APA, Washington D.C. 1998).
[FN54]. This summary appears in George Holden, Introduction: The Development of Research into Another Consequence of Family Violence, CHILDRENEXPOSED TO MARITAL VIOLENCE 3 4 (G. W. Holden, R. Geffner, & E. N. Jouriles, eds., 1998).
[FN55]. Peter Jaffe, David Wolfe, and Susan Wilson, CHILDREN OF BATTERED WOMEN (Sage, Newbury Park, CA, 1990); ENDING THE CYCLE OF VIOLENCE: COMMUNITY RESPONSES TO CHILDREN OF BATTERED WOMEN (E. Peled, P. G. Jaffe, & J. L. Edelson, eds., Sage, Thousand Oaks, CA, 1995); GROUPWORK WITH CHILDREN OF BATTERED WOMEN: A PRACTITIONER'S MANUAL (E. Peled & D. Davis, eds., Sage, Thousand Oaks, CA, 1995); CHILDREN EXPOSED TO MARITAL VIOLENCE (G. W. Holden, R. Geffner, & E. N. Jouriles, eds., 1998).
[FN56]. G. W. Holden, Introduction: The Development of Research into Another Consequence of Family Violence, CHILDREN EXPOSED TO MARITAL VIOLENCE, 1, 10 (G. W. Holden, R. Geffner, & E. N. Jouriles, eds., 1998).
[FN57]. P. G. Jaffe and R. Geffner, Child Custody Disputes and Domestic Violence: Critical Issues for Mental Health, Social Service, and Legal Professionals, CHILDREN EXPOSED TO MARITAL VIOLENCE, 371, 374 (G. W. Holden, R. Geffner, & E. N. Jouriles, eds., 1998): "Although many parents within violent families think that they have protected their children from the violence, between 80% and 90% of children indicate the opposite.... At the extreme, when women are murdered by their husbands, children are present in approximately 25% of the cases."
[FN58]. These problems include attention deficit disorder; externalizing problems such as aggression, anger, conduct disorder, cruelty to animals, destructiveness, oppositional behavior and noncompliance, and drug and alcohol use; internalizing problems such as anxiety, depression, excessive clinging, fears, shyness, low self esteem, passivity and withdrawal, self blame, sadness, and suicidal tendencies; symptoms of post traumatic stress disorder such as flashbacks, nightmares, anxiety and hypervigilance, sleep disturbances, numbing of affect, and guilt; separation anxiety; social behavior and competence problems such as poor problem solving skills, low empathy, deficits in social skills, acceptance, and perpetration of violence in relationships; school problems such as poor academic performance, poor conduct, and truancy; somatic problems such as headaches, bedwetting, insomnia, and ulcers; and obsessive compulsive disorder and other assorted temperamental difficulties. This list is drawn from O. W. Barnett, C. L. Miller Perrin, and R. D. Perrin FAMILY VIOLENCE ACROSS THE LIFESPAN, 141 42 (Sage, Thousand Oaks, CA, 1997). It seems that younger children are more likely to exhibit somatic complaints and experience greater distress, while older children are more likely to experience one or more specific externalizing or internalizing problems. Whether and how a child's gender affects his or her response to parental violence is not yet clear, despite some intriguing preliminary studies. George Holden, Introduction: The Development of Research into Another Consequence of Family Violence, CHILDREN EXPOSED TO MARITAL VIOLENCE 7 9 (G. W. Holden, R. Geffner, & E. N. Jouriles, eds., 1998).
[FN59]. The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 220 (1995).
[FN60]. Preliminary Report of the Guardian ad Litem Assessment Project, Massachusetts Chapter of the National Association of Social Workers' Committee on Domestic Violence and Sexual Assault, January 1998.
[FN61]. See, e.g., Supreme Court of Missouri, Standards With Comments for Guardians ad Litem in Missouri Juvenile and Family Law Matters, Standard 16.0.
[FN62]. The Child Witness to Violence Project at Boston Medical Center in Boston, Massachusetts, for example, has been retained as guardian ad litem by Massachusetts probate and family courts in cases involving domestic violence.
[FN63]. See J. Pearson, Mediating When Domestic Violence Is a Factor: Policies and Practices in Court Based Divorce Mediation Programs, 14 MEDIATION QUARTERLY 319, 320 (1997), and sources there cited.
[FN64]. The Massachusetts Supreme Judicial Court took a different position in Custody of Vaughn, 422 Mass. 590, 598 n.10, 664 N.E.2d 434, 439 n.10 (1995):
We would hesitate a long time before suggesting that in cases such as these, not only must both sides produce expert witnesses, but they must be experts in family violence. A qualified clinical psychologist with experience in family matters will ... have encountered this issue in his training and, unfortunately, all too frequently in his clinical practice.
The two studies referenced above in notes 59 and 60, however, suggest that encountering the issue does not necessarily translate into competence in assessing or responding to it and that some level of specific expertise is indeed a requirement for practice in this specialized field.
[FN65]. Beth Daley and Zachary R. Rowdy, T stop attack hurts 4: Rush hour crowd views bloody melee, BOSTON GLOBE, B1, Oct. 20, 1998.
[FN66]. George Tibbets, Wash. Woman Couldn't Escape Husband, Associated Press, Dec. 21, 1998.
[FN67]. See, e.g., "Understanding Abuse After Separation," in Violence and the Family: A Report of the American Psychological Association Presidential Task Force on Violence and the Family, 39 40 (APA, Washington D.C. 1996).
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