Premieres Thursday, October 20 at 10 pm ET on PBS (check local listings)

• Child Custody Determinations in Cases Involving Intimate Partner Violence: a Human Rights Analysis
June 2004, Vol 94, No. 6 | American Journal of Public Health 951-957
© 2004

Jay G. Silverman, PhD, Cynthia M. Mesh, PhD, Carrie V. Cuthbert, JD, Kim Slote, JD and Lundy Bancroft, BA
Jay G. Silverman and Cynthia M. Mesh are with the Department of Society Human Development and Health, Division of Public Health Practice, Harvard School of Public Health, Boston, Mass. Carrie V. Cuthbert and Kim Slote are with the Women’s Rights Network, Wellesley Centers for Women, Wellesley College, Wellesley, Mass. Lundy Bancroft trains professionals and authors books in Northampton, Mass.
Correspondence: Requests for reprints should be sent to Jay G. Silverman, PhD, Harvard School of Public Health, 677 Huntington Ave, Boston, MA 02115

Abstract
Intimate partner violence and child abuse are recognized both as public health concerns and as violations of human rights, but related government actions and inactions are rarely documented as human rights violations in the United States.
Men who abuse female partners are also highly likely to abuse the children of these women. However, family courts are reported to often ignore risks posed by abusive men in awarding child custody and visitation. Battered women involved in child custody litigation in Massachusetts (n = 39) were interviewed. A recurring pattern of potential human rights violations by the state was documented, corresponding to rights guaranteed in multiple internationally accepted human rights covenants and treaties.
The human rights framework is a powerful tool for demonstrating the need for legal, social, and political reform regarding public health concerns.
Report of the Massachusetts Supreme Judicial Court Gender Bias Study Committee, 24 New England L. Rev. 745 (l990)

Fathers who actively seek custody [8.75% of fathers] obtain either primary or joint physical custody over 70% of the time.


• The Leadership Council
Are "Good Enough" Parents Losing Custody to Abusive Ex-Partners?

• Partner Violence and Child Custody Cases

A Cross-National Comparison of Legal Reforms and Issues
Peter G. Jaffe

Centre for Children and Families in the Justice System of the London Family Court Clinic

Claire V. Crooks

University of Western Ontario Centre for Research on Violence Against Women and Children

Abstract

A review of policies and procedures for addressing partner violence in child custody across four countries shows different pathways to the same issues. In the United States, Canada, Australia, and New Zealand, the reform of child custody legislation faces a debate between fathers’ rights groups and domestic violence advocates, within an environment promoting mediation and joint custody as the gold standard. There is a clear need for research to better inform these debates, including cross-national research, and for the development of court and community interventions to support children facing separation and divorce in the context of parental violence.

Conclusion

In summary, among all the controversies in the domestic violence field, the child custody issue requires a complex understanding and analysis of victims, perpetrators, and their children, and the collaboration between court and community service partners. Although the focus of the current debates between father’s rights groups and domestic violence advocates tends to focus on legislative reform, the law is only one piece of a much larger system. The extent to which this system is integrated and supported will have a direct bearing on the success of the legislation. Countries beginning to navigate these issues will benefit from first developing the requisite court and community training and services, without which subsequent changes in legislation will be less meaningful.

Violence Against Women, Vol. 10, No. 8, 917-934 (2004)
DOI: 10.1177/1077801204266447
© 2004 SAGE Publications


National Council of Juvenile and Family Court Judges
Navigating Custody and Visitation Evaluations
in Cases with Domestic Violence:
A Judge’s Guide


Parental Alienation and the Daubert Standard: on Syndromes and Behaviors
In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the Supreme Court ruled that even expert testimony based in the “soft sciences” must meet the standard set in the Daubert case. Daubert, in which the Court re-examined the standard it had earlier articulated in the Frye case, requires application of a multi-factor test, including peer review, publication, testability, rate of error, and general acceptance. Richard Gardner’s theory positing the existence of “parental alienation syndrome” or “PAS” has been discredited by the scientific community. (our emphasis)Testimony that a party to a custody case suffers from the syndrome should therefore be ruled inadmissible both under the standard established in Daubert and the stricter Frye standard. Children in contested custody cases may indeed express fear of, concern about, distaste for, or anger with one parent. And those feelings may sometimes have been fostered or encouraged by alienating behaviors on the part of the other parent. On the other hand, there are a variety of competing explanations that need to be explored— including the very real possibility that the children are responding to concerns based in their own experience with the parent from whom they feel estranged. Cases known or suspected to involve domestic violence pose particular challenges, because:

• abusive parents commonly blame their partners for turning their children against them, and rarely take responsibility for the impact of their own behavior on the children;

• it is often legitimate for the partner of an abusive parent to try to protect the children from exposure to abuse, or to try to secure his or her own safety from the abusive partner by limiting that partner’s contact with the children. It may be hard to distinguish between appropriately protective behavior and behavior which is well intentioned but excessive and ultimately counter-productive;

• the undermining strategies employed by abusive partners commonly include invalidating their partners’ parental authority and sabotaging their relationships with the children; and

• children in an abusive household may feel safer identifying and allying with the abusive partner than with the one who suffers abuse. Custody evaluators should be advised to listen carefully to children’s concerns about each of their parents, and follow up with a careful investigation as to whether those concerns are grounded in fact, what role each parent has played in shaping the children’s perceptions of the other parent, and each parent’s apparent motivation. This careful fact-based inquiry, unlike applying the PAS label, will yield admissible and more accurate and valuable testimony.

<back to Breaking the Silence main page>