RESEARCH INDICATING THAT THE MAJORITY OF CASES THAT GO TO COURT AS "HIGH CONFLICT" CONTESTED CUSTODY CASES HAVE A HISTORY OF DOMESTIC VIOLENCE

Compiled by Professor Joan S. Meier, Esq.
George Washington University Law School

I. Janet Johnston's publications

Janet Johnston is best known as a researcher of high conflict divorce and parental alienation. Not a particular friend of domestic violence advocates or perspectives, she has been one of the first to note that domestic violence issues should be seen as the norm, not the exception, in custody litigation.

Janet R. Johnston et al, "Allegations and Substantiations of Abuse in Custody-Disputing Families," Family Court Review, Vol. 43, No. 2, April 2005, 284-294, p. 284.

Janet R. Johnston, "High-Conflict Divorce," The Future of Children, Vol. 4, No. 1, Spring 1994, 165-182, p. 167.

Johnston has noted that approximately 80% of divorce cases are settled, either up front, or as the case moves through the process. Studies have found that only approximately 20% of divorcing or separating families take the case to court. Only approximately 4-5% ultimately go to trial, with most cases settling at some point earlier in the process. (Citing large study by Maccoby and Mnookin, dividing the child: social and legal dilemmas of custody. Cambridge, MA: Harvard U. Press [1992]).

Johnston cites another study done in California by Depner and colleagues, which found that, among custody litigants referred to mediation, "[p]hysical aggression had occurred between 75% and 70% of the parents . . . even though the couples had been separated. . . [for an average of 30-42 months]". Furthermore, [i]n 35% of the first sample and 48% of the second, [the violence] was denoted as severe and involved battering and threatening to use or using a weapon." -Johnston (1994), supra, citing Depner et al., "Building a uniform statistical reporting system: A snapshot of California Family Court Services," Family and Conciliation Courts Review (1992) 30: 185-206.

After surveying the research, Johnston concludes:

"Taken all together these studies suggest that, in divorces marked by ongoing disputes over the custody and care of children, both inside and outside the court, there is often a history of domestic violence in the family and a likelihood that the violence will continue after the separation." - Id. (1994) at p. 169.

It has previously been observed, based on research which predates the domestic violence/parental alienation battles that are now a feature of the field, that "multiple allegations of abuse are a feature of those higher conflict families" whose cases become contested custody litigation. - Johnston (2005), supra (citing Maccoby and Mnookin (1992).

II. Peter Jaffe's compilation of studies

Peter Jaffe is one of the world's leading experts on children, domestic violence, and custody.

- Peter Jaffe, Michelle Zerwer, & Samantha Poisson, (2004),"ACCESS DENIED: The Barriers of Violence and Poverty for Abused Women and their Children After Separation," p. 1.

In "Access Denied", Jaffe states the following:

"Myth: Domestic violence is rarely a problem for divorcing couples involved in a child custody dispute."
Fact: The majority of parents in "high-conflict divorces" involving child custody disputes report a history of domestic violence."

Jaffe et al also lists the following studies (with the following descriptions) as supporting the position that most custody litigants have had a history of domestic violence:

  • In a review of parents referred for child custody evaluations by the court, domestic violence was raised in 75% of the cases. - Jaffe, P.G. & Austin, G. (1995). The Impact of Witnessing Violence on Children in Custody and Visitation Disputes. Paper presented at the Fourth International Family Violence Research Conference, Durham NH (Rep. No. July 1995)
  • Of 2,500 families entering mediation in CA, approximately three quarters of parents indicated that domestic violence had occurred during the relationship. -Hirst, 2002
  • Between 70-75% of parents referred by the family court for counseling because of failed mediation or continuing disputes over the care of their children, physical aggression had taken place. - Johnston & Campbell, (1988), Impasses of Divorce: The dynamics and resolution of family conflict. New York, NY, US: The Free Press.
  • Attempts to leave a violent partner with children, is one of the most significant factors associated with severe domestic violence and death. - Websdale, N. (1999). Understanding Domestic Homicide. Boston, MA: University Press.
  • A majority of separating parents are able to develop a post-separation parenting plan for their children with minimal intervention of the family court system. However, in 20% of the cases greater intervention was required by lawyers, court-related personnel (such as mediators and evaluators) and judges. In the majority of these cases, which are commonly referred to as "high-conflict," domestic violence is a significant issue. - Johnston, J. R. (1994). "High-conflict divorce." Future of Children, 4, 165-182.

III. National Center for State Courts

Studies conducted by the National Center for State Courts (NCSC), looking solely at court records, have found documented evidence of domestic violence in 20-55% of contested custody cases.

The NCSC's study, looking only at documented domestic violence in custody court records, found that 24% of court records contained some evidence of domestic violence in Louisville; 27% in Baltimore; and 55% of Las Vegas cases indicated domestic violence. - Susan Keilitz et al, Ðomestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers, prepared for the National Center for State Courts; State Justice Institute," NCSC Publication Number R- 202, p. 5.

The same study found that a screening process (utilized by the mediation program) "revealed a much higher incidence of domestic violence than a review of court records alone would have indicated." - Id . at 7.

IV. Custody Courts Regularly Fail to Note or Lack Information about history of Domestic Violence

Kernic et al., "Children in the Crossfire: Child Custody Determinations Among Couples With a History of Intimate Partner Violence," Violence Against Women, Vol. 11, No. 8, August 2005, 991-1021, 1013,

Kernic et al. from the Harborview Injury Prevention & Research Center in Seattle, studied at divorce cases, including both those with a documented, substantiated, and/or alleged history of domestic violence, and those without. The study found that in 47.6% of cases with a documented, substantiated history, no mention of the abuse was found in the divorce case files. - Id . at 1005.

Kernic et al. found that "the court was made aware of less than one fourth of those cases with a substantiated history of intimate partner violence." - Id. at 1016.

Further, Kernic et al. found that fathers with a history of committing abuse were denied child visitation in only 17% of cases. Mothers in these cases were no more likely to obtain custody than mothers in non-abuse cases. This study found that mothers were "more likely" than fathers to be awarded sole custody, but does not identify what proportion of cases resulted in equal sharing of physical custody (which is available in Washington even when one parent is designated "primary"). - Id. at 1014-1015.

The Virginia Commission on Domestic Violence Prevention commissioned a study of these issues at University of Virginia in 1997-98. The study found that in custody cases where there was also a domestic abuse case in court, only 25% of the custody files referenced the existence of the domestic abuse case. - www.courts.state.va.us/fvp/history.html

ATTACHMENT

Doreen Ludwig’s comments in response to Pennsylvania plan to increase funding of Counselors, Parenting Coordinators, etc. using HHS OSCE and TANF funds.

March 3, 2009 Presentation to Senate Judiciary Chairman in response to Proposed Changes to Child Custody Law.    Doreen Ludwig, PO Box 13778 , Reading PA 19612 , #610-939=1354

I contacted Mr. Warner because I have documented a lack of due process in child custody, especially in cases involving abuse.  Custody decisions are made not by Judges, but by Psychologists who call themselves evaluators.  The custody evaluator does NOT adhere to law or Rules of Evidence.  They do not investigate or verify false allegations.  They often rely solely on hypothetical tests and do not question collateral witnesses such as the children’s school, doctors, family, friends, or police reports.  They have no training or hands-on experience in abuse and control.  They have a profit motive and they are giving custody to abusers to continue cases and award themselves perpetual counseling fees which tend to be higher than the market average.

NO REMEDY FOR AN UNETHICAL, PERJURIOUS CUSTODY EVALUATION 

THERE IS NO REMEDY FOR AN UNETHICAL, PERJURIOUS CUSTODY EVALUATION  THAT DOES NOT PROTECT VICTIMS OF ABUSE!!!!  See Dr. Ring’s report stating “abuse was mutual.” 

The Pennsylvania Supreme Court DENIES appeals, against the PA Constitution, in order to permit custody to be determined solely on the basis of the custody evaluation, even when it is proven to be written for one parent only.  Likewise, Court Administration DENIES that custody evaluators are submitting fictitious reports.  The Rules Committee refuses to hold evaluators to any standard.

The Pennsylvania Supreme Court Rules Committee has refused to write standards for custody evaluations.  Reports are submitted as evidence WITHOUT cross-examination. Witnesses and exhibits that disagree with statements contained in the custody evaluation are DENIED or ignored.  Reports are not held to the legal standard of Frye Hearings to determine their admissibility.  Reports do not even address the Best Interests of the Children.  Judges abdicate responsibility to the evaluator.

BIAS REPORT PROVES BREAKDOWN

The “FINAL REPORT OF THE PENNSYLVANIA SUPREME COURT COMMITTEE ON RACIAL AND GENDER BIAS IN THE JUSTICE SYSTEM, 1999-2003” proves a severe breakdown in protection from abuse in issues of family law.   The Bias Report failed to adequately address domestic violence in custody, support and divorce. 

The Bias Report failed to document results of contested custody including use of evaluations.

Page 474 – Custody - County Surveys - None of the counties responded to a survey question concerning the percentage of fathers who were awarded primary physical custody in contested custody actions, nor did any respond to the survey’s request for breakdowns by race and gender of the outcome of plaintiffs’ requests for physical custody for 2000–01.

Judges responsibility -  It is the family court responsibility to facilitate fair, and equitable litigation.  One party shall not maintain sole control of marital assets during pendency of custody litigation.  Parity and equal access to the law is in the best interests of the children.  An interim disbursement may be needed to obtain parity and equal access to the law.  The Bias Report states “The courts rarely grant advance distributions of marital assets. Because most non-consensual divorce cases take more than two years for assets to be distributed, the court’s reluctance to enter interim awards places a burden on the economically dependent spouse and may inhibit his or her full access to the legal system. The spouse controlling the marital estate may also dissipate the assets, leaving no recourse for the dependent spouse.”  “At public hearings throughout Pennsylvania, attorneys and litigants testified that the judicial system often provides little or no help to pro se litigants who are either initiating legal proceedings or responding to actions against them.[i]”

TRADE ASSOCIATIONS MAXIMIZE PROFIT

Since 1999, when the task force developed SB 74, Trade Associations have increased their influence within family court.  Trade Association members include Judges, Court Administrators, lawyers and custody evaluators.  Trade Associations facilitate networking between members, teaching Judges, administrators, lawyers and custody evaluators how to work together for maximum business profit potential. 

Proposed 5332, 5334, 5335, 5339 and 5340 would help trade association, for-profit motivated, members increase business by court appointment and orders for fees.  There are NO limits on fees and NO ethical requirements for practitioners, and NO system for review.  In fact, the proposed 5340 protects unethical custody evaluators!!!  See Dr. Ring charges.

There is already court approval of bankruptcy due to litigation.  See Berks County Court Administrator letter.  Proposed 5332, 5334, 5335, 5339 and 5340 will increase bankruptcy.  There is no protection for equal access to funds for defense.  Abusers are more likely to control finances.  Legal aide and pro bono representation is NOT available for victims of abuse.

Abusers are more likely to seek custody and to take the abuse to court.  See Working Paper, page 91-93, Exhibit K, “Research Indicating That The Majority Of Cases That Go To Court As "High Conflict" Contested Custody Cases Have A History Of Domestic Violence” compiled by Professor Joan S. Meier, Esq., George Washington University Law School . 

Bias Report at Page 402 - While some courts are all too willing to challenge the domestic abuse survivor’s motivations for filing a PFA petition, they often fail to question the abuser’s motive for requesting substantial custody. Research indicates that custody disputes are more frequent when there is a history of domestic violence. Moreover, fathers who are batterers are twice as likely to seek sole custody of their children.62 Such requests for substantial custody may be a misuse of the legal system, motivated by the batterer’s continuing need to control and abuse the mother through harassment and retaliatory legal action. Fathers in such cases may use children as an excuse to have contact with the women they are otherwise prohibited from seeing. Yet, if mothers seek to protect themselves and their children by moving frequently or seeking to limit the father’s contact, the courts may view the mothers as unstable, uncooperative, and unwilling to share access to their children, all in contravention of Pennsylvania’s Custody Act.

Unfortunately for children, the trade association has found abuse and extended litigation good for business!!!  The trade association is NOT motivated by The Best Interests of the Children.  The members are motivated by self-interest of profit!

STATE RESPONSIBLE FOR PROTECTION

The trade association’s minimize abuse and control.  They prefer to give victims equal accountability for the abuse, often dismissing abuse as high conflict or alienation. 

This unequal treatment sends a message that the mother is more responsible for getting help and is more “sick” for being in an abusive relationship than the actual person who committed the violence. As part of their mental abuse, many fathers will tell a woman that if she seeks help to escape the home, the system will turn against her, that she will be blamed for the break up of the family, that she will lose everything and that the abuser will get away with everything because he is in control - the system often perpetuates this belief and reinforces to women that they are powerless and will be punished, no matter what they do. Id. In re Sharline Nicholson, et al., 00-CV-2229 (JBW) (CLP), US Eastern District New York  3/1/2002

The “Nicholson” Opinion was written after abused mothers sued New York Children and Youth for failure to protect victims of abuse.  The Honorable Justice Weinstein addresses Government’s responsibility to victims: 

Responsibility for governmental protection of children rests primarily on the state or municipality. See, e.g. Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 Hast. L. J. 1, 19-26 (2001).

In a heterogeneous, non-theocratic and democratic society such as ours, there is enormous diversity in domestic relationships and in the degree that they are founded on mutual respect and love (the norm) or malevolence. Particularly if there is a sexual relationship between the adults, the emotional interaction may be intense, sometimes flaring into psychological or even physical abuse. The abuse may be endemic. It may be directed against the children as well as the mother. The children may be indirectly affected, as when they observe an abusive incident. Even when the abuse is not physical, it may be so fierce as to be the equivalent of a beating. The mother may lack the ability or resources to either protect herself or the children. Economic, emotional, moral or other ties may, as a practical matter, prevent the mother from separating from the abuser or seeking governmental protection against him. She may hope for eventual reconciliation – and sometimes it does occur.

Myriad subtle reasons may prevent her from separating from the abuser, protecting the children, or seeking assistance. In some households ethnic or social mores are relied upon to justify abuse as a “traditional right.” Ability to deal with tensions induced by self, a partner, children, economic and social factors varies enormously among those who become embroiled in domestic violence. In short, this case presents the most intricate and recondite relationships, the stuff of thousands of novels, poems, newspaper accounts, and legal proceedings.

Whatever the explanation, physical abuse of mothers and children, or the imminent threat of such ill treatment is not tolerated in our American society. Whether the mother, the family, or the immediate social group accepts cruelty as the norm or as permitted, it is a minimum assumption of our twenty-first century United States that it will not be tolerated.  The Government has the obligation to stop it and prevent its recurrence whenever it can.

Second, battered women often suffer from behavioral and psychological problems that differentiate them quite sharply from non-battered women. Third, the behavior of social workers and health service providers was a direct, albeit inadvertent, contributor to women’s sense of being trapped in abusive relationships. Tr.1540.  The most dangerous time for a woman and a child appears to be immediately after she leaves the batterer; his threats will usually make her aware of this. Ex. 106 at 16.  The battered woman cannot change or stop the perpetrator’s violence by herself. If she does not have adequate support, resources, and protection, leaving him may simply make it worse for the children.” Id. at 19.

PSYCHOLOGISTS/EVALUATORS DON’T ACT IN THE BEST INTERESTS OF CHILDREN

An influential trade association is the Association of Family Conciliation Courts (AFCC).  This group began in California and has developed to a National organization with extreme influence over family courts.  This group does NOT advocate for victims of abuse.  It does NOT advocate for safety of children.  It advocates for Fathers Rights often by a presumption of shared custody even when the Father is abusive, ranging from physical abuse, verbal and psychological abuse to sexual abuse (looking, touching, to penetration).  Because of the advocacy for abusers, AFCC disseminates legal strategies for abusers to obtain custody.  Legal strategies that proliferate in family court include:

·       Making false allegations of mental illness, drug abuse,

·       Makings claims of alienation or unwillingness to foster a positive abuser/child relationship

Lawyers can obtain a custody evaluator who will write a report awarding custody to the abuser.  Lawyers are coached to have pre-arranged agreement with Judges to let the custody evaluator run the case.  See Dr. Bricklin’s  “SEVERE PARENTAL ALIENATION AND SIMILAR ESTRANGEMENT PATTERNS: OUTPATIENT THERAPEUTIC PROTOCOLS”  Exhibit J, page 82-90 of working paper, proving advocating pre-agreements for judicial orders to administer Threat Therapy to child abuse victims.  These pre-agreements with Judges are common.  All PACE custody evaluators are certified only after submitting a letter from a Judge.  It should be noted that Dr. Barry Bricklin advocates for pedophiles and treatment of children by Threat Therapy.  Dr. Bricklin’s wife is the President of the Pennsylvania Psychological Board.  In Berks County the PACE evaluator is Dr. Timothy Ring.  Charges against Dr. Ring and the transcript of 3/27/06 prove that Dr. Ring was used to award custody to Father, an abuser. 

Even if a parent has a (mildly) “negative” style, a child who interacts with this parent has the opportunity to learn how to deal with it, increasing that child’s available coping and resource-styles throughout life.

Not only must a MHP deal with all of the diagnostic complexities already mentioned, but also with the fact that psychological life is transformational: it is a “work in continual progress.”  A parent who was previously a poor psychological match for a particular child can therapeutically upgrade and transform his or her styles and become a good match for the child. A maturing child may come to see aspects of value in a given parent’s behavior that were initially not perceived by the child, or were perhaps not even in existence prior to the child’s changing his or her own patterns which then could induce change in the parent.  All relationships are continuously interactive and potentially transformative for each member of any given family system.

Hence the best (and probably only) way to ascertain if an alienated or estranged child could profit from an ongoing relation with a “target” parent is to set up the special kind of therapeutic program that has a chance of being successful in such cases and observing what happens.  Once the program is in place one can carefully monitor the therapeutic process for positive and negative prognostic signs.  We rarely mention these emergent signs (signs that usually do not yet exist at the outset of treatment) because some can be “faked” (while others cannot be faked).  In other words, we rarely, at the outset, tell the main therapeutic participants all of the things we are paying attention to.

A therapeutic plan that can be successful in these cases is very different than traditional plans.  For one thing, the Court must be actively involved in the process (specific details are listed later).  For another, the child must rapidly see that he or she is NOT going to be the major (or even minor) decision-maker of importance as to who attends the therapeutic sessions or for how long.  This “tail-wagging-the-dog” phenomenon in which a child gets to exercise control over parents will ultimately not only ensure that an out-patient reunification process fails, but is also ultimately harmful to the child as he or she grows up.

Conservative foundations investments paid off handsomely in 1996, as their grantees were deeply involved in drafting the new welfare legislation. Debate centered on correcting perceived defects in the nation’s welfare system, rather than designing a strategy to reduce child poverty or increase family income. Ending the features of the system that were perceived as encouraging dependency and family instability was stressed more than creating affirmative policies to improve the economic well-being of American’s low-income families. To the extent that enhanced well-being was considered, it was assumed to flow directly from reductions in dependency and non-marital births. The Republican’s Congressional victory in 1994, and the perceived endorsements of the GOP Contract with America – reinforced the conservative message.[1]

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