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Journal of the Task Group on Child Custody Issues
Volume 5, Number 1, Spring1993 (Fourth Edition, 2001)
C/o University Studies, Portland State University, Portland, OR, 97207-0751
503-725-5844, 503-725-5977 (FAX) , straton@pdx.edu
What is Fair for Children of Abusive Men?
By Jack C. Straton, Ph.D.
Presented at
What About the Kids?
Custody and Visitation Decisions in Families with a History of Violence
National Training Project of the Duluth Domestic Abuse Project
Thursday, October 8, 1992, Duluth, Minnesota
Introduction
I want to express my deep gratitude to Ellen Pence, Madeline Dupre, Jim Soderberg andthe others from the Duluth
Domestic Abuse Intervention Project for giving me this opportunity to speak with you. The State of Minnesota should
be proud that, quite literally, the world looks to this program for guidance on understanding and ending domestic violence.
I also want to acknowledge how much I continually learn from Barbara Hart, of the Pennsylvania Coalition Against Domestic
Violence.
I will first critically examine the criterion at the base of all custody laws today, “What is in the best
interests of the children?” I will the talk about children’s choice in these matters. Then I will examine the
actual effects of wife-battering on children, and develop an alternative paradigm for custody based on those effects. Fromthis
I will examine the question, “Is it ever appropriate to ever give a batter custody of a child?”
In the process, I am going to talk today about the effects of male power and control over children, not about
parental power and control. I know that it is popular these days to de-gender family conflict, to talk about “spouse
abuse” and “family violence”rather than “wife beating” and “rape.” I know that we
want a society in which men nurture children to the same extent that women do. I know that fathers and mothers should both
be capable parents. But if you ask “What about the kids?” I want to give you aerious answer. I cannot seriously
entertain the myth that our society really is gender neutral, so to consider “What about the kids?” while
pretending such neutrality is to engage in denial and cognitive dissonance. I cannot hope to arrive at an answer that
will positively affect reality if my underlying assumptions are based on fantasy.
So I am going to talk today about the effects of male power and control over children, not about parental power
and control. As I cite examples, some of you may hear your internal voice saying, “But women do that, too.” As
this happens I would ask you to beaware that such voices are often the voice of guilt that
try to distract us from what we really know about men’s violence
so that we need not take responsibility for this violence. It is true, for example, that some women do battermen. But the
number of severe cases of this type is so low when compared with the virtual war of men’s violence against women, that
they cannot be seen above the statistical noise. This voice that says “But women do that, too” has as
its purpose, not compassion for battered men or lesbians, but a distraction from the noble goal of endingbattering of women.
So as you hear this voice today, become consciously aware of it. Let it into your conscious mind for a moment,
and then let it drift on. It is just a tape recording that youcan always come back to in an hour or two if there is a need.
If you find that you just can’t contain this voice, that others must hear this tape recording, please do not hesitateto
raise a hand or even to shout it out. We will pause to give it some space.
Whose Best Interests?
I want to begin by instilling in you a healthy skepticism about the “Best interests of the child”
criterion that underlies custody laws today.
It is important to acknowledge that the term “the best interestsof the child” is so vague thatsome
adult must state what constitutes “best interest.” In practice courts rely on social and psychological professionals
to make this determination. While such individuals are surely skilled and caring individuals, it must be admitted that they
operate out of a set of professional norms that are never openly discussed, and are subject to professional fad. For instance,
Irene Thèry of France notes thattoday “there is a real reversal of traditional models. The stigmatization of remarriage
and the prescriptionof fidelity have given place to the stigmatization of solitude anthe prescription of ‘remaking one’s
life,’ i.e. finding a new partner.” 1
As Martha L. Fineman, of this country, says, “A desire for sole custody has now been labeled ‘pathological’.”
There are obvious and serious consequences for batteredwomen with the “creation of professional norms which
would give custody to . . . the parent most willing to share the child with the other parent.” 2
In addition, the “best interests” criterion is flawed because of its unpredictability, which presumably
“has an impact on the number of cases brought before courts, sincethere is a stronger reason to have a case tried when
the outcome is uncertain.. . . The threat of bringing the case to court, with an uncertain outcome, may easily be used as
pressure on the other party in order to obtain advantages in the [out of court] economic settlement,” e.g. lower child
support payments. 3 In this way the “best
interests” criterion ironically may lead to the impoverishment of children. This is more serious in cases involving
child abuse where the mother’s fear of losing custody to the father is extreme.
Finally, Fineman notes that “rules that focus on the performance of nurturing or caretaking have been
attacked, not because they are explicitly gender biased, but because in operation they will act to favor women who traditionally
perform such tasks,” 4 though clearly
any man can choose to become the primary caretaker. So instead of viewing past behavior as a predictor of future behavior
on behalf of the child, the “best interests” criterion looks at present status,
such as incomeor a new partner (a more frequent occurrence for the fathers). But Sandberg observes that in “consequence,
the result of treating people equally when their situation is in fact different is a de facto inequality. Fathers have, because of
the new legislation, obtained a stronger position in child custody cases than their efforts in the caretakingof children should
fairly allow.”5
Joint Custody
Joint Custody is clearly a type of “best interests” criterion. It explicitly assumes that joint
custody is in the child’s best interests.
There are severe consequences for battered women subjected to joint custody presumptions. Joint custody forced upon
two hostileparents can create a toxic psychological environment for a child.
Because 95% of all joint custody awards are for joint legal custody6 the living
arrangements are exactly the same as under a sole-custody/ visitation order. However joint legal custody does expand the right
of the non-primary-caretaking parent to impede the ability of the primary-caretaker to make needed and timely decisions.
Some provisions in joint legal custody laws require a minimum visitation period for the noncustodial parent
that can be limited only when there is a threat of physical harm tothe child. This threat is difficult to prove, especially when the accuseris perceived as a litigant with
avested interest in distortion. And such provisions also do not addresspsychological and emotional abuse.
The threat of a joint custody decision may be used by the husband to bargain out of court for a reduction in
child support payments (trading children for money in a throwback to the 19th century lawsin which children were considered
to be property of the father). The potential for bartering away the child’s financial resources because of a bad faith
request for custody is reinforced by (“friendly parent”) provisions that give a preference to the parent requesting
joint custody when the alternative of sole custody is considered by the court.
Such “friendly parent” provisions also guarantee an abusive father or husband access to
the victim. Men who batter their wives may also sexually abuse their children. 7 Themore fearful a woman is of the father gaining sole custody, thmore
willing she may be to submit to joint custody or to a reduction in child support.
Children’s right to choose vs. abuser’s manipulation of a child.
I want to talk about the question of children advocating on their own behalf. As one who would like to see the
rights of children recognized and affirmed, I am temptedto say that, yes, a child should have some input into a decision about
with whom they will live. Yet in the present case we have a man who, though he beats his wife, is often very charismatic
to the rest of the world, and perhaps to his kids. And even if he beats his kids as well, it is known that intermittent affection
can be a stronger binding agent than consistent affection. We also have a man whohas demonstrated his power over another human
being through brutality.
It is known that older children will sometimes join in the abuse of their mother. Since it isthe older children
to whom we might be tempted to accede some measure of choice, I find this mirroring of the father’s brutality disquieting.
I do not ask you to take one side or the other of this question, but to be cautious until someone more wise than I can resolve
the knot for you.
The Primary Caretaker Rule
My preference for the primary caretaker criterion will be obvious as I speak today. In Sandberg’s summary:
This criterion “would hardly lead to worse decisions than ‘the best interests of the child’, considering
all the uncertainty it implies.”“It should only exceptionally result in a worse solution than if the other parent
was chosen. . . . That parent has demonstrated a willingness to take care of the child and has practice doing the job. There
is also reason to believe that the child is emotionally more attached to her or him. Besides,
during the marriage the parties after all set up the caretaker arrangement together,
and would hardly have done this while thinking that the actual primary caretaker was less fit than the other parent”8
For today’s discussion, I will point out that since men are nearly always the batterers in domestic violence
and women are nearly always the primary caretakers for the children, adoption of the primary caretaker criterion for custody
would enormously relieve both the courts and advocates for battered women of much of their work around custody decisions.
Murdering one’s wife
Before leaving this section, I want to note just how far the “best interest”criterion can be stretched.
A Florida court in 1987 acknowledged that a
“man’s violent and
Policy Statement on Child Custody Laws* The National Organization for Men Against Sexism1
is committed to make substantive this nation's ideals of equality and justice. In choosing loyalties in disputes over
child custody, any society that cares for its future must make its primary concern that which is truly in the best interests
of children. In a society such as ours in which men daily subject women to violence, oppression, and discrimination, men who
would not add to this violence must not blindly side with other men in custody disputes. Indeed, men must relinquish the privilege
of sitting idle while the lives and freedoms of women and children are impoverished by vindictive men who lobby, in our name,
for laws that benefit men. An examination of custody laws in the various states2 reveals widespread injustice toward
women and children. There is a disturbing national trend toward laws mandating joint custody3 despite a lack of
psychological and social research showing this to be in the interests of the child.4 In fact it is clear that court
mandated joint custody is not in the best interests of the child.5 - Joint
custody forced upon two hostile parents can create a toxic psychological environment for a child.
- Because 95% of all joint custody awards are for joint legal custody6 the living arrangements are
exactly the same as under a sole-custody/visitation order. However joint legal custody does expand the right of the non-primary-caretaking
parent to impede the ability of the primary- caretaker to make needed and timely decisions.
- Some provisions in joint legal custody laws require a minimum visitation period for the noncustodial parent
that can be limited only when there is a threat of physical harm to the child. This threat is difficult to prove, especially
when the accuser is perceived as a litigant with a vested interest in distortion. And such provisions also do not address
psychological and emotional abuse.
- The threat of a joint custody decision may
be used by the husband to bargain out of court for a reduction in child support payments (trading children for money in a
throwback to the 19th century laws in which children were considered to be property of the father). The potential for bartering
away the child's financial resources because of a bad faith request for custody is reinforced by (“friendly parent”)
provisions that give a preference to the parent requesting joint custody when the alternative of sole custody is considered
by the court.
- Such “friendly parent” provisions also guarantee
an abusive father or husband access to the victim. Men who batter their wives will frequently sexually abuse their children
as well.7 8 The more fearful a woman is of the father gaining sole custody, the more willing she may be to submit
to joint custody or to a reduction in child support.
Furthermore, court
mandated joint custody is not in the best interests of mothers. - Joint custody
gives an abusive husband a key for perpetual access to his victim. In 50% of all US marriages at least one incident of spousal
abuse has occurred9 and in 10-25% violence is a common occurrence. Attacks by husbands on wives result in more
injuries requiring medical treatment than rapes, muggings, and auto accidents combined.10 Nearly a third of female
homicide victims are killed by their husbands or partners.11
- “Friendly
parent” provisions are particularly disastrous because a woman who does not assure “frequent and continuing contact”
may be seen as “uncooperative,” resulting in the child being placed in the care of an abusive parent.
- Provisions barring removal of the child from the family home prior to custody resolution put a battered
woman in the double-bind of jeopardizing her custody case or living in a dangerous and violent home.
- Provisions requiring that the noncustodial parent have unrestricted access to records and information
pertaining to the child are extremely dangerous in that they allow an abusive parent access to the location of shelters for
battered women, the child's residence and school, and the woman's residence and place of employment.
- Provisions requiring mediation rather than advocated negotiation or litigation pose grave dangers
to women who are forced to “compromise” with a spouse who's abusive behavior is based on control and domination.
Unequal bargaining power and ability between husband and wife, lack of confidentiality, and the bias and agenda of the mediator,
add to the dangers inherent in a system in which mediators have had to meet no standards of training.
- Joint custody statutes including provisions for “modification at any time” enable the
noncustodial parent to subject both the custodian and the child to repeated and frivolous litigation.
- Provisions for joint custody “when the parties are in agreement” contain the potential
for one parent forcing the other into accepting such an “agreement” out of fear of losing in a sole custody trial.
Such laws generally do not require the court to inquire whether the “agreement” was reached under duress.
- Joint custody is a workable arrangement only for those parents who can cooperate respectfully with
each other and these parents can cooperate as fully under a sole-custody/visitation order.
Because court mandated joint custody is unworkable for those parents who cannot cooperate, is unneeded by
those parents who can cooperate, and creates unconscionable costs in pain and privation for children and mothers, this option
for settling custody disputes is unacceptable. In examining other options, we see that the awarding of sole custody based
on so called “best interests of the child” also has its drawbacks. - Custody
determination based upon which parent can provide the greatest wealth, or upon the preference of children who may want to
live with the parent that provides them with the greatest wealth, puts women at a disadvantage because men earn, on average,
169% of what women earn.
- There is a high correlation between the finding of
which parent is deemed most fit by “expert [psychological and sociological] witnesses” and which parent is paying
them.12
- The process of observation is intrusive, time consuming,
and unsettling to the child.
- As with joint custody threats, the threat of a
court battle over sole custody may be used to extract lower child support payments in an out-of-court agreement.
- In In re Abdulla “an Illinois appellate court [later overturned] found that a man's
conviction for murdering his wife (the child's mother) was not `clear and convincing evidence' of depravity or unfitness
so as to deny him custody of the child.”
Finally, laws providing
for a “maternal preference” in awarding sole custody are not acceptable because they are unfair to men who are
the primary care givers to their children. But these laws are easily corrected to the gender-neutral preference for leaving
children in the custody of the parent who has been the primary giver of care (the parent who most often prepares the meals,
changes diapers and dresses and bathes the child, chauffeurs the child, monitors the child's health, and interacts with
the child's friends and teachers), as in the “Primary Caretaker Parent Rule” of West Virginia. Such a rule
reflects that a custody settlement cannot be expected to undo a father's lack of participation in parenting within the
marriage while also validating claims to custody by fathers who were fully involved in parenting within the marriage. This policy statement has detailed the ways in which child custody laws that have been instituted
by men have caused women and children fear, violence, and privation. Men within the National Organization for Changing Men
understand that loyalty to other men cannot come at such a cost to women and children. Because silence implies consent, it
is time for men who abhor violence against women and children to speak out against this injustice and get these laws changed.
Men can no longer hide behind complacency and male privilege, allowing the bitterness and the manipulative, coercive, and
controlling behavior of their peers to be the foundation of public policy. |
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