Transcript Professionalism & Ethics in Family Court Practice

Keeping Battered Women Safe
Springfield, IL
April 5, 2011
© 2011
Joan Zorza, Esq.
[email protected]
(with thanks to Judge Michael Brigner)
Batterer Court Manipulation

Batterers use the courts to further
their agendas to demoralize and drive
their partners:
 into poverty
 into homelessness
 onto welfare
 into losing custody
2
What We Should Know About
Batterers – Litigation Abuse
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Protracted divorce litigation
Repeated continuances, delays
Unsupportable custody demands
Burdensome discovery, esp. depositions
Trading children for money
Repeated motions for custody/ evaluations
Repeated motions to increase visitation
Repeated motions to reduce support
Repeated motions for visitation contempt
3
How Do Batterers Win? Allies:
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Lawyers
Guns
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Money
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Mental Health Professionals
Judges
Custody Laws
Judicial System
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$$$$
4
Batterers Set Up Victims to Look Bad,
Have No Credibility, esp. with Courts
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Sabotage her parenting, housekeeping
Deprive her of sleep, food, medicine, warmth
Deny their misdeeds &/or project them on her
Keep her in a perpetual state of anger/ fear
Slander her behind her back
Terrorize her so she acts paranoid, esp. re kids
Financially and emotionally exhaust her
Drive her into crime or abhorrent behaviors
Drive her to drink, use drugs, attempt suicide
Lock her out naked or barely clothed
All these drive away any support mechanisms
5
Why is custody litigation so
successful for abusers?
Child Custody Expert:
“The most important thing to
remember about many
abusive fathers seeking
child custody is that this is a NONO-LOSE GAME for him,
because
He doesn’t really want the kids
anyway!”
6
M
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Manipulating with Money
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Hiring lawyers
Hiring experts
Repeated delays
Repeated hearings, trials, appeals
Fruitless mediation process
Collaborative law
Buying the children’s affection
Withholding support
[Funding judicial campaigns]
8
Batterers’ Kryptonite
Custody cases are
their magic weapon
for disarming all of a
mother’s legal
protections
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 Despite
domestic
violence/custody laws
in every state, Mothers
who are victims of
domestic abuse are less
likely than other
mothers to get custody.
10
But Women Are More Credible
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Women seldom make false allegations.
Women gain no tactical advantage from alleging
abuse, whether of themselves or their children.
Incest allegations are rare in divorce and
custody cases, seldom more than 3% of cases.
“Canadian statistics show that fathers are 16
times as likely as mothers to make maliciously
fabricated allegations of child sexual abuse.”
Joan Zorza, Child Custody Practices in the Family Courts in
Cases Involving Domestic Violence, p. 1-23.
11
It’s NOT Getting Better

20 years ago, judges
give custody to
battering fathers as
often as to nonviolent fathers.
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Liss & Stahly, 1993
Now abusers get it
more often, & nonabusive dads are still
more likely to get
supervised visitation.

11(8) Violence Against
Women (2005)
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Custody Courts Favor Alleged Abusers

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National Institute of Justice-funded study:
Only 35% of mothers who alleged abuse
got primary custody
Reported in:
Failure to Protect: The Crisis
in America’s Family Courts
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Custody Courts Favor Alleged Abusers

“Attorneys have learned to caution their
clients not to reveal abuse allegations in
custody cases.”
Reported in:
Failure to Protect: The Crisis
in America’s Family Courts
M
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Custody Courts Favor Alleged Abusers

“ALLEGED” ABUSE?
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In 450 high-risk custody evaluations
investigated over five years by one forensic
risk company, almost 90% of the children
were abused
Reported in:
Failure to Protect: The Crisis
in America’s Family Courts
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New Evidence that
Custody Courts Are Broken
75 Children Dead on the Courts’ Watch
June 2009 – April 2010
Center for Judicial Excellence, San Rafael, CA
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
Reported in:
Failure to Protect: The Crisis in America’s Family
Courts
 By Cara Tabachnick
 Thursday, May 6, 2010
 The Crime Report

http://thecrimereport.org/2010/05/06/failure-to-protect-the-crisisin-america%E2%80%99s-family-courts/
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Q: Why does she stay?
A: It’s the judges’ fault
1.
Fathers who abuse mothers also abuse
the kids (30 – 80%)
+
2.
1.
Courts give unsupervised visitation
=
Protective mothers STAY
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Litigation Abuse & Judicial
Indifference Undermine Safety
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M
A threat of contested custody
litigation is the most common reason
women:
 Stay or return to their abuser
 Give up property
 Give up support
 Agree to joint custody –
Even when its not safe to do so
A threat to abduct the children is the
second most common reason
18
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34% of abusive
fathers threaten
during visitation to
kidnap their
children; 25%
threaten to hurt
their children.
DV accounts for
most of the
350,000 children
abducted annually
by parents in U.S. 19
Each year, in the United States,
more than 350,000 children are
abducted by parents
 54% of these abductions are
short-term manipulation around
custody orders
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Finkelhor, Hotaling & Sedlak
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Judges Mishandle Protection
Order Cases
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Refusal to grant protection orders
Grant relief only for a short duration
Denial of entitled relief
Refuse to vacate batterer from home
No review or enforcement
No batterer intervention orders
Anger management orders
Denial of custody
Failure to protect children from dangerous
access
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Judges Mishandle Protection
Order Cases
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No findings of fact
Vacate order, esp after he completes batterer
program
No or inadequate economic relief (child or
spousal support, attorney fees,
restitution/damages; & no enforcement of relief
for her)
Unlawful gun orders
Judges (and some statutes) say no precedential
weight to protective orders granted on consent
 May violate VAW full faith & credit mandate
(18 U.S. C. §§ 2266-2267)
22
Judges Can:
• Take Away Every Tool Men Use to Abuse
& Control Battered Women & Children:
– Treat Abuse Seriously – Protective Bond
– Protection Orders – Support Orders
– Deny Continuances – Order Full Restitution
– Deny Him Visitation – Visitation by Photograph
– Supervised Visitation – Relocation Permission
– Monitored Batterer Intervention
– Speedy, Strict Enforcement – Jail for Violations
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OR Judges Can:
• Help the Abuser by Reinforcing Every
Tool
• Source: James Ptacek, “Battered Women in the
Courtroom” Northeastern University Press, Boston, 199924
M
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Batterer Allies: Lawyers
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Too few
Too expensive/ Underfunded
Too untrained
Too unwilling to challenge? object
Unwilling to represent her in custody case
Unwilling or unable to appeal judges
Too many criminal defense attorneys and
not enough prosecutors
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Batterer Allies:
Mental Health Professionals
GALs
 Custody Evaluators
 Parent Coordinators
 Expert Witnesses
 Child Protection
 Some therapists
 Etc.
Social work developed to regulate women,
immigrants & the poor.
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Mental Health Professionals
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Cottage industry of mental health practitioners operating
out of the family courts
Often keep cases until the children turn 18
Extraordinary costs to battered mothers
Increasing recognition that most psychological tools used
ostensibly to determine which parent will better parent
were never designed for this purpose
Virtually none of the instruments used have been normed
on battered women, or even divorcing couples
Very few mental health professionals have any real
expertise in domestic violence, thus widespread
misdiagnoses and assessments
28
Mental Health Professionals
[MHPs] Know Little about DV
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Most MHPs still know little about DV
or incest or realize its danger or harm
Think it is a family dynamic/ conflict
 Assume it is mutual
 Blame the victim
 Think separation or divorce ends it
Few know how to treat it, so suggest
inappropriate, ineffective, dangerous
and costly ways.
Dudley, McCloskey & Kuston (2008).
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Mental Health Professionals
[MHPs] Know Little about DV

Psychiatry/ psychology have:
 no test for determining who is a DV
perpetrator or victim
 No test for determining who is a
child sexual abuse perp. or victim
 Little ability to predict future
abusive behavior
MHPs have not kept costs down;
therapeutic jurisprudence costs $$.
Batterers like impoverishing their women.
30
Parental Alienation Syndrome
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A defense to abuse charges that blames
mothers for children’s antipathy to
fathers’ violence
Unproven/ Never peer reviewed
Gender-biased
Unaccepted by American Psychological
Association/ & Am. Psychiatric Association
Inadmissible under court evidentiary rules
EXTREMELY SUCCESSFUL PLOY AGAINST
MOTHERS
31
Batterer Allies:
Custody Laws
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Shared Parenting /Joint Custody
Friendly Parent Provisions
Relocation Rules
Mediation
Collaborative Law
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How Criminal System sets up
Moms to Fail in Custody Cases:
Criminal System undermines her custody case:
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DV not an ongoing crime, only one incident
Law may be inadequate on self-defense
Police fail to respond, or fail to arrest
Police make dual arrest, or arrest only her
Dual charges wash out; or she pleads guilty to go home
Prosecutor refuses to bring charges against him
Diversion of criminal charges against him
Plea bargaining of case/case continued without finding
Case dismissed after he completes batterer program
No factual or guilty findings ever remain
Consensual protective orders - no precedential value
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How Civil System sets up Moms
to Fail in Custody Cases:
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Cases sent to mediation despite DV
Mediator/ GAL /custody evaluator ignore DV or
think it’s too old. They push joint custody
Woman denied credibility (not believed)
Mom accused of Parental Alienation Syndrome
Studies introduced on value of fathering
Contempt filed against mom for protecting kids
Dad’s endless litigation exhausts her financially
Child protection allegations against mom
She’s denied relocation – threshold too high
She flees to protect kids & loses custody
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Countering Batterer
Manipulation in the Courts
1. NEVER Agree to
Collaborative Law
if there is
Domestic Violence
(Almost certainly guarantees
she’ll be bankrupt)
35
What can women custody litigants
do to meet this system?
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Keep evidence of all abuse
 Even from previous cases
Competent legal counsel
Keep their eyes on the prize (custody)
Preserve the record – or you can’t appeal
Oppose mental health evaluations
Depose all custody/mental health experts
 Ask what is the custody law; what’s in
the child’s best interest; what do they
know about DV & how they learned it?36
What can women custody litigants
do to meet this system?
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Speak of “our child(ren)” (not mine)
Speak of child(ren)’s needs, not yours
Speak more in sorrow than in anger
Respect the court; Never lose your cool
Demand safety
Demand reasons why judge thinks
children will be safe with his order
Demand economic justice
Appeal adverse decisions
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What can women custody litigants
do to meet this system?
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Remember mothers are judged by a
much higher standard than are fathers
•
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The “reasonable Madonna standard”
That means that what a man can get
away with will be seen as much worse if a
mother does it
Always assume your abuser will be aware
of what you are doing
If it is going to hurt your custody case,
don’t do it
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What can women custody litigants
do to meet this system?
Attach to motions and briefs material
backing up your claims, showing:
• That PAS is junk science.
• That men are less credible than women.
• A copy of your state’s custody law
showing that the judge must consider
evidence of DV when deciding custody.
• That most mental health providers know
little about DV.
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FOR REAL CHILD
PROTECTION:
Restore non-offending mothers to
economic self-sufficiency
 Child support
 Spousal support
 Support enforcement
 Property division
 Attorney fees
 Government/private help
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The Courts’ #1 Priority?
Restore the Non-Offending
Mother to Self-Sufficiency
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Unless the judge assigns her and the
children personal round-the-clock
police protection, SHE must protect
the children – now & in the future
The court should admit it can’t do
this
And admit “The System” can’t do this
ONLY the mother is in a
position to protect
children from a violent
father
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Are Lawyers
The Most
Important Link?
A recent study found:
Legal representation for battered
women is the ONLY community
service that actually reduces the
incidence of domestic violence
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Legal Services Reduce
Violence!

“Because legal services help
women with practical
matters such as protective
orders, custody and child
support, they appear to
actually present women
with real, long-term
alternatives to their
relationships.”
Farmer & Tiefenthaler, 2002 study based upon US Department of
Justice report, published in Contemporary Economic Policy
43
Every State Legislature Knows
that DV Harms Exposed Children
Every state’s laws makes DV at least
a factor in child custody
determinations between parents
24 states & DC have a presumption
that batterers should not get custody.
44
Richard Gardner Created FPC &
PAS - to Win Criminal Cases
Gardner testified for defendants in incest
cases, needed a winning theory.
 He created FPC and later PAS – a way to
blame Moms.
 Even he admitted they aren’t based on
any studies; based it on his own cases.
 He self-published all his books.
 His work was never peer-reviewed.
 His work was never accepted as valid.
45
Richard Gardner Taught:
Paraphilias enhance procreation: CSA,
sadism, necrophilia, sex with animals/
enemas/ urine/ feces.
 Incest is an honorable choice.
 Women enjoy being beaten for the price of
receiving sperm.
 Jews are to blame for laws against CSA.
 Children should be told that incest is normal.
 Told Congress that US should abolish child
protection & reporting of child abuse; Instead
spend $$$ on men falsely accused of CSA

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Richard Gardner
He switched as expert witness from criminal
to divorce cases when he found he was less
challenged, he could earn more.
 He advocated cutting off any contact with
custodial parent if PA.
 He wrote a sanitized book & sent to every
family court in the US, & offered to, and did,
train judges & MHPs for free on PAS & FPC.
 Many MHPs trained by him and his disciples
assume PAS & FPC are valid.


Others assume it’s what judges want to hear.
47
PA Theory is Gender Biased
 Only
her behaviors count as alienating
Not paying child support isn’t alienating
 Not legitimating her when could isn’t alienating
 Not visiting isn’t unfriendly or alienating
 Alleging PA isn’t unfriendly or alienating

Only custodial parent is punished; no
penalty if he returns children late
 PAS/PA & “friendly parent” concept
encourage men to fight for custody
and make false allegations of PA

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PA Chills Women from Filing
Abuse; Prevents Investigations
PA chills victims from raising DV claims
 PA prevents moms and children from
raising incest claims
 PA permits him to litigate (or relitigate
old) abuse allegations as PA.


Even old settled cases, which violate her rights
and res judicata, issue preclusion
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PA Obstructs Serious Assessment
of Risks to Children
 Family
Courts assume mental health
practitioners are experts, so accept their
theories without subjecting them to
normal evidentiary requirements for
scientific evidence.
 Most lawyers fail to object and challenge
PAS/PA theory.
 So, CSA allegations are assumed to be
false, and proof that mom is alienating the
children from dad.
50
Child Protection Exacerbates
 Many
child welfare agencies also assume
child sexual abuse claims made during
custody disputes are an alienation
strategy, rather than a valid concern.
 Child welfare agencies seldom investigate
cases in family court.
 Many family courts assume that if child
welfare agency didn’t “substantiate” an
allegation it didn’t believe the allegation.
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Advocate for Judges To:
 Evaluate
abuse claims first – before
alienation or custody issues
 Craft Orders requiring serious
investigation of abuse by an abuse expert
 Ensure that the scientific validity of
alienation or other syndrome theories is
thoroughly vetted in a Frye/Daubert
hearing before admitting such testimony
 Never rely solely on observations of
parents with children
52
Advocate for Judges To:
 Critically
assess evaluators’ opinions.
 Ensure that their interpretation of the
evidence is grounded in scientific
knowledge, e.g., understandings of
children’s disclosures, offender dynamics,
the link between DV & child sexual abuse,
the counter-intuitive aspects of the
psychology of children and abusers, and
the fact that the widespread skepticism
toward CSA claims in custody court is
inconsistent with scientific knowledge.
(See, NCJFCJ’s Custody Evaluation Guide, p. 24)
53
Dangers of Mediation
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Assumes parties are able to know and
articulate what they want, have
roughly equal knowledge about the
situation, will bargain in good faith,
and have equal bargaining power.
Blames both for past bad behaviors; &
assumes they will stop in the future.
Assumes mediation is cheaper, faster,
gets better results, better compliance
-- none of these are true in DV cases.
(Ratchet wheel effect when mediation breaks
down.)
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Mediation assumes dwelling on past is
counterproductive, they need to move
on, so will teach new skills to do so.
• It’s not safe for victim to communicate
with abuser before he stops all abuse,
and she feels safe and has healed. (And
she may be too upset to plan/ strategize. If
afraid, she may say “no” or become silent.)
• She can’t heal till she recognizes the
abuse and gets over her anger.
• Her anger levels are probably highest
around the time case comes to court.
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To Oppose: Is mediation mandatory?
• Argue if any statutes allow opt out.
• Will parties be screened for domestic
violence? Separately, & not just before.
• What security arrangements are there
so that she can feel safe?
• Will shuttle mediation be used?
• Will mediator refuse to negotiate on DV
protection terms?
• Is the mediator knowledgeable about
DV? Sympathetic to DV victims?
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• Can she opt out of mediation without
any penalty?
• At any time? Or bring an advocate or
lawyer with her?
• If he threatens her will the mediator
tell the court?
• If mediations fails, will the mediator
make a recommendation?
• Will court hear why mediation failed?
• Will this violate any promise of
confidentiality in the mediation?
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SIXTH AMENDMENT Object to
Mediation:
• Mediation involves revealing her desires and
case strategy.
• The 6th Amendment to the U.S. Constitution
guarantees us the right to be represented by
counsel.
• Prohibiting her attorney to be present denies
her this right.
• Judges usually back down in the particular
case upon hearing a 6th Amendment
objection, not wanting to lose on appeal the
ability to refer cases to mediation; or anger
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other judges, who like mediation.
FIRST AMENDMENT Mediation Objection
• To claim it is against her religion, she must
say what she believes, show that mediation
is against those principles, & show she
sincerely holds those beliefs.
• She need not prove that any others of her
faith are against mediation.
• Neither Christianity nor Judaism are based
on forgiveness, an assumption of mediation.
God forgives.
• Forgiveness is from Shakespeare's King
Lear, not the Bible (Old or New Testaments)!
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Preparing Her for Mediation-Process Qs
• Will mediator tell them what the law is?
• Any consequences if no agreement?
• Will mediator make any recommendation
to judge? Talk to judge? Talk to judge ex
parte? Without a record? Negotiable??
• Shuttle mediation or both parties present?
• What is to be decided?
• In what order? Negotiable??
• Is mediator allowed to mislead? / lie/ or
misrepresent what she (or he) said to the
other one? Is this negotiable??
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Preparing Her for Mediation-Bottom Line
• What does she need? What does she want?
• What do the children need? Want?
• What is her (& children’s) bottom line????
• She should not reveal her bottom line, but
she should stick to it. (Any exceptions?)
• Is she willing to walk out????
• Explain why something isn’t workable
(e.g., I’d be blamed by CPS).
• Can she bring a lawyer/ advocate/ friend?
• MEDIATOR desperately wants AGREEMENT
• That’s her strength/ mediator’s weakness.
61
Dangers of Joint Custody for BW
• Joint custody (JC) = shared parenting
• Legal (control) vs. physical (residential)
custody
• Assumes children will be happier &
better adjusted, fathers will be more
involved & pay child support better,
parents will cooperate more. (But most
are not true, esp. when DV.)
• Joint custody costs both parents more
$$, but child support is usually lower.
62
Dangers of Joint Custody for BW
Assumes both parents are good parents,
can cooperate with each other, will
benefit children, and won’t use the
children or use visitation to abuse.
Assumes that reasonable parents will be
reasonable.
But batterers are never reasonable; joint
custody gives them license to abuse,
which most of them do.
Doesn’t work - when opposed or abuse.
63
Couples Counseling Endangers
• The AMA’s family violence protocol advises against
it in abusive relationships The APA’s position paper
says it’s controversial, may increase violence in
abusive relationships.
• Few therapists see DV as a major problem, so do not
hold abusers accountable for their behavior. (Abusers
perceive empathy as supporting their position.)
• Emphasis gets put on the victim changing, increasing
his power & tools to use against her.
64
Avoid Mutual Protection Orders
• They usually violate the victim’s due
process rights. (No advance notice.)
• They give the wrong message: that both
parties are equally to blame. This
confuses everyone (including children),
and helps the abuser minimize his abuse
and further blame his victim.
• They slow healing for each in family.
• Victim more endangered than no order.
65
• Police do not know how to enforce
them, so arrest both, or neither.
• They discourage using the system.
• This encourages violence to escalate
unchecked, increasing homicide risk.
• This reinforces that abuse is mutual.
• Mutual orders hurt the children: (a)
foster care; (b) abuser is more likely to
get custody; and (c) Mom may lose the
DV custody advantage that legislature
wanted her to have.
66
Relocating: A Catch 22
• Battered women are punished with loss of
custody for moving with kids without
father’s or court’s permission (esp. when
he has visitation/ shared parenting), but
also for failing to protect the children.
• He may get kids even when abuse is bad.
• Courts are most hostile when it appears to
be a plan to cut off his access to children.
• State laws may prohibit move w/o father’s
or court’s permission.
67
Relocation: Federal Authority
• Privileges and Immunities IV Clause of
U.S. Constitution – allows travel to other
states (- but custody is complex).
• Authority supporting moves for DV/ CA:
• Foreign: affirmative defense: 18 U.S.C. §
1204(c)(2) & Hague Convention grave risk
exception.
• Within states: PKPA/ UCCJEA permit
state to cede jurisdiction for safety.
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Relocating: For Court Permission
• She needs a well-thought out plan
(good home, schools, job, health care,
emotional support, religion, protection)
• Good DV services in new community.
• Good police protection in new community.
Supreme Court said in CASTLE ROCK V. GONZALES,
545 U.S. 748 (2005), that police have no responsibility to
enforce orders of protection. If protection/ enforcement of
orders of protection are poor in her current community, &
better in new one, argue that Castle Rock provides another
reason she should be permitted to move.
69
Relocating: For Court Permission
• If true: Prior court orders haven’t
protected her (or kids), abuse has been
severe/ frequent, & affected her/kids badly.
• If he hasn’t been supporting her: better
financial opportunities in new community:
job training, school, job, family, marriage.
• She won’t be an economic drain on state.
• Offer realistic, safe visitation for him.
• Move will be an improvement for her/ kids.
70
Relocating: For Court Permission
• Nothing else has worked.
• ?File with divorce/custody case?
WARNING: Relocation cases are
among the hardest for mothers to
win. Her safety/concerns are not
seen as all that important. (See, e.g.,
Massachusetts’s Gender Bias Study, 1989.)
71
What Keeps DV Victims Safe?
Do children have fears? Does she? Any guns?
How to respond to fears? Can neighbors help
protect her?
Will supervised visitation be safe? Who could
do it regularly/safely/ responsibly/ affordably?
Where? Who pays cost?
Can pick ups and drop offs of children be
safely arranged? How/Who/Where? Is
driving a problem (substance abuse)?
72
DOMESTIC ABUSE SCREENING:
The worse the abuse, the greater the
danger to her and the children.
Her suicidal ideation does not increase
her risk from him, but she needs help.
Animal abuse increases her danger,
but not the chance he will kill her.
 Whirlwind relationship; sex required
after a beating; sabotaging birth control.
David Adams, Why Do They Kill? Men Who Murder
Their Intimate Partners, 2007.
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Danger/Lethality Screening:
The worst danger is if he:
Thinks she has child by someone else
Has access to handguns,
Is obsessed with or stalks her,
Has threatened or tried to kill or
Seriously hurt her, her loved one, or another
Uses illegal drugs (homicide) or alcohol,
Has raped her/ others,
Badly demeaned her.
Jackie Campbell, www.dangerassessment.org
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Do Batterer Programs Work?






DV isn’t anger based, so anger
management & empathy based programs
only encourage him.
Short programs work much worse than
those lasting at least 12 weeks.
Otherwise, no program type works better.
The best programs only reduce the
physical abuse 5%; & may increase
emotional abuse. (Increase in rural areas)
Completers do better than non-completers.
No reason to think completers are cured/
should have custody or unsupervised
visits.
© Zorza Associates, 2008, www.zorza.net
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Batterer’s 12 Steps to Ending Abuse
1.
2.
3.
4.
5.
Fully disclose history of physical &
psychological abuse against his
partner & children without minimizing.
Recognize it was unacceptable.
Recognize it was chosen behavior.
Must show empathy for effects on
partner & children (not enough to say
“I hurt her” or made her afraid).
Must identify his pattern of controlling
behaviors and entitled attitudes, &
how he involved the children.
(From & Silverman, Bancroft, The Batterer as
Parent (2002))
April, 2011
What Judges Should Know About DV
76
Batterer’s 12 Steps to Ending Abuse
6. Develop respectful behaviors & attitudes.
7. Reevaluate his distorted image of partner.
8. Make amends both in the short & long
term.
9. Accept the consequences of his actions for
him.
10. Must commit to not repeating abuse.
11. Must accept change as life-long process.
12. Must be willing to be accountable.
Apologizing is just the first step.
Anger management doesn’t work for abusers.
April, 2011
What Judges Should Know About DV
77
Anything More Promising?




Issue clear, protective Order of
Protection (ideally with custody, no or
at most supervised visitation; firearm
restriction; vacate order for abuser;
child support)
Quick enforcement of any violation of
OP terms or failure to comply with
treatment (BIP and any substance
abuse program)
By judge/or probation backed by judge
With non-trivial escalating penalties
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Litigation Costs - DV Victims:




Batterers deplete victims of money/energy.
Average cost of a contested custody case
for a BW in U.S. is $85,000, largely
because abusers keep relitigating
everything/forcing case back to court – to
impoverish her.
Few BW can afford cost of a lawyer; over
80% of divorce/ custody litigants have no
lawyer in U.S. Many later lose lawyers.
Mental health professionals have not kept
costs down; therapeutic jurisprudence is $.
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Cost of DV to Society:




DV takes 1/3 of all police response time.
Probation in Mass. found 1st time DV
perps have on average 13 entries on
their probation records, many for violent
crimes against strangers, some against
other victims.
Few victims have any probation records.
(So much for the idea that batterers are
good people stressed out by divorce.)
MA found that DV better predicts serious
crime than any other measure/
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behavior.
Cost of DV to Society:



MA has a 2½ year penalty for any DV
misdemeanor crime; half must be served.
Employers spend huge amounts on DV in
absenteeism, higher medical insurance,
training new hires/ those relocated,
security.
Colorado found police are far more
willing to intervene for a first DV
offense – only penalty is an OP. They
often ignore later offenses knowing the
penalty depends on the judge.
81
We Need to Remember:




DV escalates upon separation/ divorce.
Few victims lie; most know DV does not
help them, & usually hurts them in
custody fights.
Batterers are very manipulative &
punitive; they retaliate; often punish
victim for revealing confidences. When
batterers lack access to their partners,
they may focus abuse on the children;
undermine the mother’s authority.
DV hurts children, though some are
resilient. Supporting victim-child
relationship mediates DV, is best way to
make children resilient.
82
We Need to Remember:






No psych tests can prove DV or CSA.
Batterer treatment is not very effective.
Victim & children need more safety.
Divorce is far less harmful to kids than
claimed; much less than living with DV.
Most children who do badly post-divorce
were doing badly years before the
divorce; difficult children often
precipitate divorce.
There is no change to tax or welfare
from divorce.
83
We Need to Remember:
After a divorce:
 Men do better financially
 Women do much worse.
 Years later women average as well off,
b/c 70% of them remarry. But much
greater income disparity. In 2007,
before divorce families averaged
$48,000; poorest 5% earned <$18,000,
richest 5% earned >$83,000. After
divorce poorest 5%women got
<$4,000; richest 5% got >$171,000.
84
References Cited:




David Adams, Why Do They Kill? Men Who Murder Their
Intimate Partners (2007).
American Psychological Association, Violence and the
Family: Report of the American Psychological Association
Presidential Task Force on Violence and the Family, 1996
Lundy Bancroft & Jay G. Silverman, The Batterer as
Parent: Addressing the Impact of Domestic Violence on
Family Dynamics (2002).
Lee H. Bowker, Michelle Arbitell, 7 J. Richard McFerron, On
the Relationship Between Wife Beating and Child Abuse, in
Feminist Perspectives on Wife Abuse (Kersti Yllo & Michele
Bograd, 1988).
85
References Cited:



Jackie Campbell, www.dangerassessment.org
Dudley, McCloskey & Kuston, Therapist Perceptions of IPV:
A Replication of Harway and Hansen’s Study after More
than a Decade, J. Aggression, Maltreatment & Trauma,
17(1), 80-102 (2008).
Deborah Epstein, Effective Intervention in Domestic
Violence Cases: Rethinking the Roles of Prosecutors,
Judges, and the Court System, 11 Yale Journal of Law and
Feminism 3 (1999); Publicizing Private Violence:
Restructuring the Justice System's Approach to Intimate
Abuse, 1 Georgetown Journal of Gender and the Law 127
(Summer 1999)
86
References Cited:




Peter G. Jaffe, Nancy K.D. Lemon, Jack Sandler, & David
A. Wolff, Working Together to End Domestic Violence
(1996).
Marsha B. Liss & Geraldine Butts Stahly, Domestic
Violence and Child Custody, in Battering and Family
Therapy: A Feminist Perspective (Marsali Hansen & Michele
Harway, Eds., 1993).
11(8) Violence Against Women, Special Issue on Child
Custody and Domestic Violence (August, 2005).
Joan Zorza, Child Custody Practices in the Family Courts in
Cases Involving Domestic Violence, in Domestic violence
Abuse, and Child Custody: Legal Strategies and Policy
Issues (Mo Therese Hannah & Barry Goldstein, Eds., 2010)
87
References Cited:


James Ptacek, Battered Women in the Courtroom (1999).
The National Council of Juvenile and Family Court
Judges puts out many excellent resources that are
available for free on their website: www.ncjfcj.org
E.g., Navigating Custody and Visitation Evaluations in
Cases with Domestic Violence: A Judge’s Guide,
www.ncjfcj/images/stories/dept/fvd/pdf/navigating_custod
y.pdf
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Keeping Battered Women Safe
Concluded
Joan Zorza, Esq.
[email protected]
© 2011