Several years ago
Several years ago (as of adding this page), I left a family court mediator, with daughters, in virtual shock at the experience. As a mother knows her kids, and uses that instinct, my gut knew that this man (2nd time round) was moving a case across the desk, again. This detachment frightened me, because a lot was on the line here!
That mediator had looked me without a glimpse of empathy or interest. He clearly stated that he had not yet read my ex’s (9-page, indexed, tabbed) “parenting plan,” and refused to listen when I attempted to explain external (to our marriage) influences on my daughters and this custody proceeding. (My ex does not type, or write, and it was clear someone had given him a boilerplate parenting plan; his input was not shown on this one.) I had an innate sense of danger (nonverbal signals). The danger was the detachment and utter lack of curiosity. A lot was on the line, and my fate was in this person’s hands? I left shaking. Predictably, the report was negative and on hearsay accusations (no evidence, and not true), my life and relationship with the children in my household was upended. Also on the line at this time was custody.
Thankfully (and probably because internet was off at home) I stopped by the local library. There, on prominent display, was Lundy Bancroft’s book, ‘WHY DOES HE DO THAT? Inside the Minds of Angry and Controlling Men.” To hear a male writer express what I already had experienced for years was very validating. It emotionally saved the day. I had never had a male of the species say anything remotely so sensible, and we’d been in front of lots of them in the violent, married years.
CHILD CUSTODY JUSTICE:
Mr. Bancroft has continued to write, speak, run conferences, and in general address the principal issues. I own two of his books (mentioned on the site), and my copy of The Batterer as Parent is highlit, underlined, and dog-eared. The other one, Why does he DO that, simply helped me recover from another ridiculous mediation session (even one of my kids, then pre-middle school, saw right through it and voiced this to me later — he just wanted to know which parent to blame! that’s “mediation”?)
Not much has changed in the Interim. This is a great read, and still relevant. I’ll get out of the way!
Note: Several of the subtitles listed are also links (back to his website).
~ ~ ~ ~ ~ANYTHING BELOW THIS LINE IS FROM THE LUNDYBANCROFT WEBSITE LINK. THANK YOU, SIR! ~ ~ ~ ~
Child Custody Justice
This introduction is adapted from a section that I wrote for Disorder in the Courts: Mothers and Their Allies Take on the Family Court System, an e-book available from California NOW, at website canow.org.There is no love deeper, more complete, and more vulnerable than the love that caring parents feel for their children. There is a bond so strong that it can be hard to tell exactly where the parent ends and the child begins, and the line is even harder to draw when our children are very young. Mothers have an additional bond from having carried their children inside of their bodies and having given birth to them, and more than half of mothers have experienced a deepened attachment through breast-feeding their babies. And mothers are, in the great majority of cases, their children’s primary caretakers, especially during their early years. All connections between caring, non-abusive parents and their children are so important as to be almost sacred, but there is usually a particular quality to the mother-child bond. That life-giving and sustaining connection deserves the full support and admiration of communities and nations.
And just as there is a special beauty and importance to relationships between mothers and their children, there is a special and extraordinary cruelty in the abusive man who attempts to break or weaken the mother-child bond, whether by turning children against their mother, by harming the children physically, sexually or psychologically, or by attempting to take custody of the children away from her.
Children need protection from their abusive parents. In the realm of custody litigation which involves abuse, the abusive parent tends to be the father while the protective parent is usually the mother, because most perpetrators of domestic violence and of child sexual abuse are male. We don’t know that much about what happens to protective fathers, since their cases are much less common, but we know that protective mothers frequently encounter a system that is insensitive, ignorant about the dynamics of abuse, and biased against women. In this context, mothers sometimes find themselves being forbidden by the court from protecting their children from a violent, cruel, or sexually abusive father. And this outcome is a tragic one, for children and for their mothers.
On behalf of the hundreds of people across the continent who are currently working for family court justice, I want to communicate to you our caring and solidarity with the challenging road you have ahead of you, as you fight to keep your children safe in body and soul. I want to let you know how critically important we believe that project to be, and how much your children need you to stand up for their rights and their well-being. You deserve admiration, not criticism, for the courageous risks you are taking on their behalf, and for your determination that all of you should have the opportunity to live in freedom and kindness.
Our society is currently giving mothers a powerful and crazy-making mixed message. First, it says to mothers, “If your children’s father is violent or abusive to you or to your children, you should leave him in order to keep your children from being exposed to his behavior.” But then, if the mother does leave, the society many times appears to do an abrupt about-face, and say, “Now that you are spilt up from your abusive partner, you must expose your children to him. Only now you must send them alone with him, without you even being around anymore to keep an eye on whether they are okay.”
What do we want? Do we want mothers to protect their children from abusers, or don’t we?
The sad result of this double-bind is that many mothers who take entirely appropriate steps to protect their children from exposure to abuse are being insulted by court personnel, harshly and unethically criticized and ridiculed in custody evaluations and psychological assessments, and required to send their children into unsupervised contact or even custody with their abusive fathers. And sometimes these rulings are coming in the face of overwhelming evidence that the children have both witnessed abuse and suffered it directly, evidence that would convince any reasonable and unbiased person that the children were in urgent need of protection. Family courts across the US and Canada appear to be guilty day in and day out of reckless endangerment of children.
Fortunately, there are also many women who do succeed in keeping their children safe post-separation. Some manage to persuade judges to grant the mother appropriate right to keep her children safe. Others lost in the early stages but do better later, as the abuser finally starts to show his true colors over time. Some women find that the succeed best by staying out of court, and using other methods to protect their children, such as waiting for the abuser to lose interest and drop out, or moving some distance away so that he will tire. Some women find that what works best is to focus on involving their children in supportive services, connecting them to healthy relatives, and teaching them to think critically and independently, so that they become strong children who see through the abuse and manipulation.
There is no formula that works for everyone. What strategies will work best for you depends on what your local court system is like, how much support you are receiving from friends and relatives, how much internal strength your children have, and how much (or how little) damage the abuser has already succeeded in doing to your relationships with your children. And each abuser is different. Some, for example, can be placated if they feel like they have won, and will gradually drift off, while others will never be satisfied with anything less than completely alienating children from their mother. Lawyers can advise you on court strategy, therapists can share their insight into children’s injuries and healing processes, but ultimately you have to rely most on your own judgment, because you are the only expert on the full complexities of you specific situation.
As you make your way ahead, I hope you will put a high priority on taking good care of yourself. Seek out kind, supportive people who are good listeners. Nurture your friendships and family relationships. Try to step through the stress long enough each day to spend some time showering your children with love if they are with you, and make sure to play with them, not just look after their needs. Notice what you have already done well, as a parent and as an advocate for your children. Give yourself credit for your own strength, and celebrate the fact that your mind is getting free of the abuse, even if your children are not free yet. Cry out your sorrows when you need to, sob into a pillow behind a closed door so you won’t upset your children, but do sob, because your heart needs the cleansing relief of those tears. And then build on your strengths and accomplishments to keep fighting.
I wish the “justice system” dispensed justice, but where it comes to child custody litigation involving abusive fathers, outcomes are mixed at best. With adequate knowledge and planning, and especially if you are among the fortunate mothers who are able to obtain competent legal representation from a lawyer who understands what abusers are like as parents, you may be able to keep your children on the path to healing. If your case goes poorly, there are still ways that you can help your children feel your love and support surrounding them, and give them the strength to survive their father’s destructiveness. But regardless of the outcome you experience personally, you might want to keep the following points in mind:
- 1) The custody system in the US and Canada is broken. You are not the only person who has experienced unhealthy and biased responses, and you are not the crazy, paranoid, vindictive person they may be painting you as.
- 2) Other women need your help to change that system, so that protective mothers start receiving proper respects for their rights and their children’s rights.
Depending on where your own case stands currently, you may have trouble imagining any involvements right now beyond your day-to-day survival, and your efforts to keep your children functioning. But involvement in social change efforts is not necessarily separate from personal healing. Many women have found that when they become active in the protective parents movement, raising their voices loudly for the custody rights of mothers who have been battered or whose children have been sexually abused, their own healing leaps forward. Breaking down personal isolation sometimes goes hand in hand with breaking down political isolation. So I offer suggestions hear not only for ways to carry on your own fight, but also for avenues to join forces with other women (and male allies) who are working for social justice, so that protective mothers and their children can stop being torn apart.
I want to express my personal gratitude to you for your efforts to protect your children from abuse, and to raise them into caring, kind, humane values. The whole world benefits when you fight for your children’s rights, and for their freedom. Protective mothers are some of our society’s most invisible and most important heroes, even while they are treated so often, in a bitter irony, as villains.
STRATEGIES FOR PURSUING THE BEST POSSIBLE OUTCOME FOR YOUR OWN CHILDREN
(This section is adapted from Chapter 13 of my bookWhen Dad Hurts Mom; Helping Your Children Heal the Wounds of Witnessing Abuse from Berkley Books.)
An abused woman can be vulnerable in family court if she comes in with unfounded expectations. Perhaps the most widespread myth is the belief that mothers are favored by courts in custody disputes, which stopped being true decades ago. It is true that for roughly the first half of the 1900′s the “Tender Years Doctrine” was influential, and mothers had some advantage in gaining custody of young children. (Prior to about 1900, mothers had no rights regarding custody at all.) But in the 1970′s the tide was turning back, for various reasons, and by the 1980′s fathers were winning at least joint custody in a majority of the custody battles they undertook, and winning sole custody more often than mothers, a situation that remains today. And the fathers who are taking advantage of this imbalance are largely abusive ones; researchers have found that abusers are twice as likely as non-abusive men to seek custody.
Why do abusive men turn up disproportionately in custody disputes? First, abusive men don’t do well at separating their own needs from those of their children, so they don’t consider how injurious it could be for the children to be taken away from the primary care of their mother, where they feel secure. Second, the abusive man is focused on power and control, and may ignore the harm he causes the children in his desperate race to settle old scores. And his lack of respect for the mother’s humanity, a centerpin of the abusive mentality, can permit him to believe that she is the one who will harm the children, not him. Occasionally, the abusive man’s main reason for seeking custody seems to be a desire to avoid having to pay child support.
Another common but mistaken belief is that a court would of course not grant custody to an abuser, especially a physical batterer. But the sad reality is that many judges say, “You aren’t together anymore, so his aggression toward you is no longer an issue. Does he beat the children? If not, there is no reason to curtail his relationship with them.” This is true despite the fact that almost every state has laws that say that domestic violence is relevant to custody and visitation disputes. Even in cases where the father has been physically abusive to the children, the mother may not have proof, or the judge may say, “Well, that only happened a few times, and he knows not to do that anymore.” Other judges conclude that the parents mutually abused each other, because the abusive man claims to be the victim.
Even — or perhaps especially — a mother whose children are being sexually abused by their father cannot assume that the court will allow her to protect them. In recent years, evidence is emerging that mothers who raise sexual abuse allegations in custody disputes run a serious risk of losing custody of their children to the abuser, a scandal that has been brought into the public eye by the documentary “Small Justice” and articles by journalist Kristen Lombardi. If you have concerns that your ex-partner is violating your children’s boundaries, be sure to read the section below called “Bringing Forward Your Concerns About Sexual Abuse,” for guidance on how to keep your children’s disclosures from backfiring against them.
The typical judge, custody evaluator, or divorce mediator, even if he or she has impressive degrees and licenses, has had very little training on domestic abuse, and none at all on abusive men as parents. Instead, court personnel tend to operate on the basis of myth and outdated beliefs, sometimes combined with prejudices against women. Specifically, court personnel and court-appointed evaluators tend to be unaware of the following:
- The well-established profile of abusive men, and the fact that these characteristics can have profound implications for their children (as I discussed in Chapter 2).
- The widespread tendency among abusive men to undermine the mother’s authority and damage her relationships with her children.
- The extremely low rate of change in abusive men except among those who participate for an extended period of time in a specialized group for abusers in combination with criminal prosecution.
- The fact that abusive men have far higher rates of physically or sexually abusing children than other men do.
- The fact that being a target of chronic abuse can leave a woman with many emotional difficulties – and sometimes physical ones as well – which she may need time to heal from.
- The tendency of abusive men to abruptly start paying focused attention to their children when they decide to seek custody, and the powerful emotional impact this positive attention can have on children who have been traumatized by the man’s abusiveness, and who simultaneously are starved for his approval.
- The fact that abusive men usually present themselves as likable, calm, reasonable people in court, do not seem in any obvious way abusive, and often play the role of hurt, misunderstood victim.
- The fact that abusive men are unhealthy role models, and that their children grow up with high rates of involvement in domestic violence themselves, and in other kinds of aggressive or anti-social behavior. (For some reason even a man who is physically violent do his partner is not considered a bad role model by most family courts, whereas a drug dealer would be, even though abusers do at least as much damage in society, including causing many deaths.)
- The fact that, for the reasons above, unsupervised or unwanted contact with their woman-abusing fathers impedes children’s recovery
This lack of information about abuse can be compounded by an active prejudice against women who raise abuse allegations. I train family court personnel all over the U.S., and at each workshop there are a few judges and evaluators who make comments such as, “I think most abuse allegations come from women trying to get a leg up in the divorce,” and, “Women are just bitter about the break-up so they try to cut the father off from the children.” These statements take infrequent occurrences and use them as an excuse to ignore most well-documented abuse.
Courts are highly reluctant to curtail fathers’ access to their children. As a number of court employees have said to me over the years, “There are so many fathers out there who abandon their children, and here I have a Dad who wants to be involved, you’re telling me I should discourage him?” As a result they tend to hold fathers to much lower standards than mothers. Supervised visitation is not often imposed, if it used usually gets lifted with a few months as long as the father behaves well under supervision, as most abusive men do.
The abusive man can often discern the court’s lack of will to hold him to proper parenting standards, with the sad result that he feels emboldened. I cannot count the number of times women have said to me, “He finally crossed a line where I thought the court would realize how out of hand he is, but they just went ahead and let him get away with it again. It seems like there’s nothing he can’t slide by on.”
Thus in order to persuade the court to take seriously the implications of your ex-partner’s abusiveness, you are forced to work doubly hard to get the court unstuck from its well-worn path. Specifically, you need to:
- Come up with as many objective sources as possible of evidence of your ex-partner’s abusiveness, such as police reports, medical records, letters from school teachers and other professionals, letters from people who witnessed important events, and other documents that can help you avoid being in a situation where court personnel say, “Well, it’s just your word against his.”
- Bend over backward to present yourself as friendly and non-vindictive in hopes of overcoming the anti-female stereotypes that often reign in court houses (even among female judges and evaluators). Hide your anger, no matter how justified it is, because court employees are harshly discrediting toward mothers who show bitterness or raise their voices, though these tones are generally accepted from fathers.
- Be as concrete and specific as you can be about why your partner’s behavioral history causes you to be concerned for your children, because court personnel will often be failing to make the appropriate connections, and will insist that you are really just thinking about yourself.
Custody evaluators can either be employees of the court or private practitioners appointed by the court. They tend to be either lawyers or mental health practitioners, though some have other backgrounds. It is rare, unfortunately, for courts to appoint evaluators whose primary professional experience is in domestic violence. In some states the custody evaluator is referred to as a “Guardian ad litem”, though this title does not make much practical difference in most cases. (In many cases, no evaluator exists at all, because neither the court nor the parents have resources to pay for one.)
The majority of custody evaluators proceed on the misguided assumption that the truth or falsehood of abuse allegations, and the level of risk to children from an abusive man, can be determined by interviewing the parties and seeing who sounds truthful. Evaluators who are mental health professionals add the dimension of “clinical evaluation,” which is equally unsound in sorting out domestic abuse concerns. If the clinical assessment indicates that the father has no major mental health problems, for example, the evaluator may declare that the abuse allegations must be false because the father doesn’t fit the “profile” of an abuser — even though the reality is that no mental health profile of an abuser exists. Extensive research and clinical evidence demonstrates that some very destructive abusers of women and children perform normally in clinical evaluations and psychological tests, but courts continue to ignore these findings.
The evaluator’s eye then turns to the abused woman. Because she is carrying the effects of many years of abuse, clinical assessment may suggest that she is actually the one with the greater problems. Tests may indicate that she has symptoms of paranoia, depression, histrionics (meaning that she exaggerates for dramatic effect), or mistrust of others — all symptoms that you will find present to at least some degree in most women who have been traumatized by abuse, especially when the women now has the additional stress of fearing that the court will forbid her to protect her children. But these predictable symptoms of abuse are used by many evaluators as evidence that her allegations of abuse are false, and that the main risk to the children is actually the mother’s mental health.
In recent years, both custody evaluators and abusive men themselves have developed increasingly distorted reasoning for blaming abused mothers for their children’s reactions. Mothers who take appropriate protective steps — such as reporting to the court what their children have told them about incidents during visitation — can get labeled as guilty of “parental alienation”. Children’s detailed and explicit disclosures of sexual abuse are sometimes dismissed with a quick wave of the hand by an evaluator or judge who declares, “The child is just trying to please the mother by joining her in her campaign against the father.”
I do encounter cases where the custody evaluator has caught on to the abuser’s mentality and tactics, and has taken seriously the risk to the children of being drawn in by him as pawns, but this outcome appears to be more the exception than the rule. So I recommend that you cautiously follow the steps below when dealing with a custody evaluation:
Don’t request or voluntarily accept the appointment of a custody evaluator unless you know who the evaluator will be, and know how that person has dealt with other abuse cases. Abused mothers often feel, understandably, that as soon as a trained professional looks carefully at the facts and sees the effects on the children, he or she will of course stop letting the abuser get away with what he’s been doing, and will allow the mother to protect her children. But the reality is often otherwise. More often than not, custody evaluators are committed to the belief that children must have extensive involvement with both parents, and often refuse to look carefully at evidence of abuse.
Proceed with caution even if you are told, “This individual is known to be trained on domestic violence;” some custody evaluators present themselves publicly as sensitive to domestic violence issues, while actually handling their cases irresponsibly. Be sure to talk to people who have actually dealt with the person’s evaluations directly before accepting their appointment.
If you have a lawyer, bring him or her to all meetings that you have with the evaluator. Some evaluators try to dissuade women from having legal representation at interviews — perhaps saying, “I just want us to have a relaxed, friendly conversation, and as soon as attorneys are present, everything gets much more adversarial” — and some lawyers are reluctant to attend, saying to the client, “Evaluators don’t like having attorneys present, and you don’t want to get the person irritated.” But the reason why evaluators don’t like having the attorney present is that they know they will have to be much more careful and professional about what they do, and will not be able to intimidate or manipulate the parent the way some evaluators do. Any evaluator who is professional and objective won’t mind having the lawyer in the room; and if the evaluator doesn’t meet that description, then that’s just all the more reason why you’d better have your attorney there.
Try to avoid inflammatory language. Many custody evaluators, whether male or female, are quick to label mothers as hysterical, too angry and bitter, incapable of separating their own feelings from their children’s, and out to cut the father off from the children. In this context, it is important for you to describe your concerns in calm, reasonable language. Express your willingness to support your children’s relationship with their father, but ask that steps first be taken to get him into proper services, including a high-quality abuser education program and any additional help he needs for substance abuse, mental health, or parent training. Explain that you want your children to have some times to catch their breath and some assistance with healing. Say that you believe your ex-partner will be a better father if he is held to some realistic measures of change and knows that he will be made accountable. Always talk of “our children” rather than “my children,” and speak of your concerns in terms of what each child needs, not what you want, even though the two tend to be the same.
Put a bad evaluator on the stand as quickly as possible. If you receive an irresponsible or biased report from your evaluator, move quickly to put the person on the witness stand and discredit his or her qualifications on domestic abuse and handling of your particular case. I find that the longer a bad report is allowed to sit unchallenged, the more damage it does; most judges proceed on the assumption that the evaluator is incapable of making any really serious mistakes unless they are shown otherwise. Powerful cross-examination is sometimes the only antidote.
Don’t give up. An unfavorable or biased report does not mean that the battle is over. Judges are sometimes willing to throw out some or all of an evaluator’s recommendations, especially if strong testimony is presented at a hearing or trial. In some cases, the abusive man agrees outside of court to terms that are better for the children than what the evaluator recommended, in order to avoid the expense and hassle of a trial and the possibility that the judge would see through him. Below, I address long-term strategizing further.
Although men who abuse women are more likely than non-abusive men to violate children’s boundaries, only a small percentage of the women I have spoken with over the years have received disclosures of outright incest from their children, or have seen behaviors in the child that caused the mother to worry about violations of this severity. However, when such concerns do arise, the mother’s life gets turned upside down; few events can cause as much pain, rage, and desperation for a mother as discovering that her child appears to be an incest victim. If you find yourself in this position, I recommend above all that you acquire a copy of John Myers’ humane and wise book A Mother’s Nightmare — Incest, which will prepare you for the best chance of successfully protecting your child.
The next piece of advice I will offer is one of the most difficult: Try with all your might, from whenever your concerns first arise, to respond to your child in a calm and matter-of-fact way, hiding your own upset and fear as much as you possibly can. A measured response is important for several reasons, including:
- Your child may be responding to an innocent, appropriate interaction that was misinterpreted by him or her, or that you are misinterpreting. It is normal for children of various ages to exhibit certain degrees of sexualized behavior, such as masturbation, which are not cause for concern in themselves, and it is not uncommon for them to make ambiguous or confusing statements about their physical contact with people. If you react very strongly prematurely, you could cause your child to become distressed about an event that was not actually upsetting to the child originally.
- If your child was indeed inappropriately touched or exposed, the experience is likely to have been frightening and confusing for him or her, and you do not want your own reaction to make the child’s upset worse.
- Overly strong reactions from a parent can cause a child to be afraid to say anything further about what is happening or even to retract the disclosure, out of fear that the perpetrator will get in serious trouble, that you can’t handle the full truth, or that the child himself or herself will be deemed to have done something wrong. Children typically feel that they are complicitous in some way in the violations that have taken place; in addition, they sometimes are threatened by the perpetrator that disastrous consequences will result for the child, their siblings, the perpetrator, or the mother if the child discloses. If you are concerned that your child may be experiencing sexual abuse, it is critical for you to react in a way that keeps lines of communication open between you and your daughter or son, so that you can over time get as accurate a picture as possible of what is taking place.
If your concerns about sexual abuse are serious — for example, if your child has made an explicit disclosure — or if the issues are more subtle but are persisting over time, try to involve a professional, such as a therapist who has experience with child sexual abuse. Unless your situation is dire, however — for example, your child is disclosing penetration — don’t pressure your child to repeat his or her disclosure to the professional, because:
- Children have a hard time talking to professionals about sexual abuse, and feeling under pressure to do so quickly can lead them to clam up and say even less.
- If the child does talk to the therapist under pressure from you, the accuracy of the disclosure may be called into doubt in court even if the child simply repeats to the therapist exactly the same details he or she told to you. For example, if the therapist asks your child, “Did your Mommy tell you to tell me these things?,” and he or she answers “Yes”, the court begins to assume that the child’s statements were false, even though all actually had said to your child was, “You need to tell the evaluator what you told me.” In addition, a child who comes to see the therapist’s office as a place “where we go to talk about the bad stuff that happened,” or “where we go to talk about how Daddy hurt me,” may soon start refusing to go, especially during periods when the father is buying him or her gifts or using other tactics to silence the child about the abuse. The child needs to view the therapist’s office as a place where he or she goes to have some fun, develop a special relationship with a new adult, and talk about feelings, so that the exploration of possible boundary violations or of negative feelings about visits with Dad are just one aspect of a multi-faceted therapeutic experience.
Now comes another delicate matter: It is important to encourage the therapist to contact the father and build a relationship with him. You may feel reluctant to do this, since your experience may be that he is always able to charm everyone he talks to, so you fear that he will soon have the therapist on his side. But if the therapist has a relationship with you and not with your ex-partner, his or her letters or testimony may be discredited in court as biased in your favor. If you feel that you can’t trust your child’s therapist not to be hoodwinked by your ex-partner, the solution is not to keep them apart, but to find a therapist with better training on abuse.
If the therapist agrees to write any letters or affidavits to the court on your behalf, ask him or her to stick to describing clinical observations and carefully drawn clinical conclusions. The therapist should avoid sounding overly invested in the case, and should not tell the judge what to do. For example, a letter from a professional can appropriately say, “I have observed that the child is upset after visitation with the father, ” or, “The child has made clear statements about boundary violations by the father that do not sound rehearsed or coerced,” but should not make statements such as, “The child has clearly been sexually abused,” or “Visitation with father should be immediately suspended.” Statements that overtly advocate for one side, or that seem to draw overly strong conclusions, can give the professional’s observations less credibility and impact in court.
Depending on where you live, a number of resources may exist in your area to support you though the turmoil that sexual abuse concerns bring. Call your local program for abused women, hospitals, and mental health clinics to look for such services as support groups for non-offending parents of incest victims, therapy groups for the child, workbooks and picture books to help you in working directly with your child on processing what has occurred, and more. (Look also on the Resource page of this website, under “For Mothers of Sexually Abused Children”.)
It is important for any abused woman facing custody and visitation litigation to find good legal representation if possible, and that issue becomes even sharper where sexual abuse arises. Below I talk more about how to find and choose a good attorney — and how to represent yourself if necessary.
Child protective services can be reluctant to get involved “in one of those messy divorce cases.” Some departments take the stand that behavior by a non-custodial parent is outside of their purview, because the mother can protect the child by getting the family court to curtail the visits. This stand ignores the fact that most family courts do not have investigative staff, certainly not of the kind that child protective services have, and are not generally trained well on child abuse and neglect issues. Furthermore, when a child protective service fails to take action on a case, the family court generally interprets that failure to mean that no protective intervention is necessary, and that the mother must have made a false allegation, even if that isn’t what the child protective service meant to indicate. And therein lies the main risk in making a child abuse report; if the social workers decide not to get involved, you may be in a worse position than before you reported.
So begin by asking advice anonymously from your local program for abused women, to see what type of response they consider likely from your child protective service based on their experience. (If you give your name, they might feel obligated to make a report even if you don’t want them to.) Consult also with your lawyer if you have one. If you decide it’s best to involve child protective services, see if a professional such as a school teacher, advocate at the abused women’s program, or your child’s therapist can file on your behalf, since the state may investigate more carefully if the report isn’t viewed as being “a weapon in a custody conflict.”
If you find out that allegations against non-custodial parents are not handled well in your area, gather up as much evidence as you can and ask for a hearing at the family court. Whenever possible avoid going into court with only your own word as evidence. Try to bring witnesses, or at least letters from them, to provide independent accounts of what your child is saying or doing that raises red flags, and get support from a professional if you can.
Because court hearings and trials can involve tremendous expense, anxiety, and time away from being with your children — a bitter irony indeed — you will probably be involved at one or more points in efforts to negotiate an agreement with your ex-partner regarding custody, visitation, and finances. It is quite common for courts to require parents to participate in mediation, even if the man has abused the woman physically, so you may end up negotiating with him even if you don’t wish to. If you can reach an accord that you can live with, by all means do so. Some abusive men do consent to move into the future rather than get stuck in the past, having their own reasons for wanting to avoid costly and stressful court battles. And your ex-partner may even turn out to be one of those abusive men who follow their post-separation agreements reasonably well and don’t mistreat or manipulate the children. If the agreement breaks down months or years from now, whether because your children are sliding downhill emotionally or because their father stops honoring his commitments, you can litigate the case later. However, be aware that proving abuse, and persuading the court to consider it relevant, gets more difficult the farther back into the past it goes.
Negotiating with an abusive man can be perilous. You may feel intimidated by him in the mediation process itself; I just recently spoke with a woman who described how her ex-partner yelled and swore at her right in front of the mediator, who neither did anything to stop him nor mentioned his conduct in her report. You may also feel pressured to agree to a plan that you aren’t comfortable with in fear that the judge will end up ordering something even worse if you don’t reach an agreement. There is no easy answer to these challenges. In a few courts, mediators are available who have been trained on domestic abuse, and some may even follow special protocols, as they should, when dealing with an alleged abuser. You should have the right not to be involved in face-to-face negotiations with a man who has abused you, but state laws and court policies don’t always respect that right.
A large proportion of abusive men do not feel obligated to honor agreements they make, because of their high level of entitlement and their extensive collection of excuses and justifications. An abuser who may seem calm and reasonable, ready to bargain in good faith and leave the past behind, may erupt into his old ways weeks or months later as the reality of the break-up starts to sink into him. Therefore, it is best to include provisions in any agreement that address how future breaches by either party will be dealt with. If you are not represented, pay a lawyer to review any documents before you sign them, helping you structure the agreement in an enforceable way and watching for loopholes that need to be closed.
Although I have included advice throughout the sections above, several points remain that can help you increase your chances of getting a fair and safe response from the court, making your children’s healing the priority that it should be:
Either find an attorney who can really fight for you, or represent yourself. People may advise you to enter a divorce or separation action with a lawyer at all costs, suggesting that it will be disastrous for you to be unrepresented. But the hundred or more accounts I have received from abused mothers in custody litigation show that the picture is not so simple. An ill-prepared, uncommitted, or dishonest lawyer can cause your case, and therefore your future, more harm than good, and can leave you penniless in the process, as is powerfully described in Karen Winner’s book Divorced from Justice. I have been involved in several cases where, for example, the lawyer assured the mother that he or she was filing certain court papers but actually failed to do so, and once the deadline had passed it was no longer possible to take the actions the woman needed to initiate, such as to appeal a judge’s ruling.
Finding the right lawyer to represent you in a custody or visitation conflict can be a challenge. Contact a nearby program for abused women to see if there are lawyers in your area whom they recommend. The fact that a lawyer is smart and high-powered does not necessarily mean that he or she can help your case; your attorney needs to be versed in the specific statutes and case law (previous rulings by higher courts) relevant to domestic violence and child abuse. Equally important, he or she needs to understand the tactics that abusers use in litigation, the types of psychological harm that unsupervised visitation can cause children who have witnessed abuse, and strategies for successfully pursuing cases in the long haul.
Your lawyer needs to be neither overly passive nor too aggressive; he or she has to have a good sense of when is the time to fight hard and when it’s necessary to compromise and show flexibility. Some issues have to be let go of, even if they are upsetting ones, in order to increase your chances of victory on the most critical points related to your children’s well-being. You and your lawyer need to present yourselves to the court as reasonable and willing to work things out for the good of your children, but at the same time not be push-overs. Show the judge that you respect him or her, but at the same time don’t be afraid to point out legal errors. Some judges will handle your case more conscientiously if they sense that you are prepared to appeal decisions that are irresponsible or that ignore the law. In short, you need a lawyer who is clear-thinking and shrewd, knows the relevant laws, and is sympathetic to the plight of abused mothers and their children.
If you cannot find or afford an attorney that you feel confident in, or if you are finding that much of your energy is going into fighting with your own lawyer, consider representing yourself. Although the first choice is certainly to have a good lawyer, goingpro se or pro per (terms for being your own lawyer) is the next best option, while having an ineffective or uncaring lawyer comes in a distant last. If you are going to represent yourself successfully, though, you will have to be prepared to do the following:
- Spend time at a law library (sometimes available within courthouses) researching relevant laws and court cases.
- Find other women who have been through custody and visitation litigation who can guide and advise you.
- Try to find a lawyer whom you can pay on an hourly basis to help you with basic procedural issues, such as how to file motions, how to give appropriate service, and how to request necessary hearings.
- Obtain the free book Managing Your Divorce: A Guide for Battered Women Resources page of this website, under “Child Custody, Divorce, and Child Support”.
- Use Internet resources for custodially challenged mothers, several of which are listed on the Resources page of this website
- Be prepared for the fact that your ex-partner and/or his attorney will attempt to intimidate you, by such tactics as lying to you about the law, or threatening to go to court and request even more frightening judgments than they have already asked for. For example, I was recently involved in a case where the abuser, who was a lawyer himself and was pro se, informed his ex-girlfriend that he had appealed the judge’s trial ruling on custody and division of assets — which was true — and proceeded to tell her that he did not have to give her the many thousands of dollars he had been ordered to pay her, because “the judge’s ruling is automatically put on hold when you file an appeal” — which is not true in their state.)
Effective representation of yourself demands of you that you be courageous, willing to do extensive research, and able to find good emotional support from friends or relatives for the stresses you are undergoing. On the positive side, you will save thousands of dollars that you can put to better purposes — such as to hire an expert witness for your trial.
Pursue the possibility of using an expert witness. I have seen expert testimony make a big difference sometimes in the outcome of cases for protective mothers. The expert does not necessarily have to be a person with tremendous academic credentials, if you cannot afford the expense of that kind of expert. The Internet is your best bet for tracking down possible experts, but also try your local battered women’s program, your state coalition of battered women’s programs, your nearest program for abusive men, and some of the other phone numbers listed in the Child Custody, Divorce, and Child Support section of the Resources page of this website. Programs for abusive men (usually called “Batterer Intervention Programs” can sometimes have good candidates for expert testimony on their staff, but they may need a little cajoling, because often they have not testified as experts in the past. Finally, try some of the names listed at the Leadership Council website (*****) as possible experts.
Be careful whose advice you follow. Women repeatedly tell me of mistakes they have made in their court cases because someone who sounded knowledgeable, and who genuinely wanted to help, gave them bad advice. Consult broadly, move cautiously, and listen carefully to your own intuition.
Consider compromising on economic issues. The financial concessions that abused mothers are sometimes forced to make in order to keep custody of their children can be terribly unfair. Nonetheless, you may decide at times that it’s best to let him get away with it. I recently spoke with a woman who went into court seeking an increase in child support, and her ex-husband retaliated furiously by filing for custody of the children, and 10 months later he won. She had no idea of the risks involved in seeking the additional economic support that her children deserved. If you can trade alimony, assets, or part of your child support for sole legal and physical custody, and maybe even get him to agree to take only limited or supervised visitation, it might be worth it. However, be aware that there is no ironclad way to stop him from later seeking custody or increased visitation, while the financial settlement tends to be set in stone.
A general principal to follow when you have children with an abusive man is that if he is leaving you alone, and not harming your children, avoid doing anything that might rouse him into action against you.
Hand onto custody if you can, even if you are having serious difficulties. Sometimes a woman comes to feel so exhausted or beaten down that she is tempted to give custody to the abuser voluntarily, so that she can stop fighting with him for a while and collect herself. But it is extraordinarily difficult to recover custody once you have given it up, even if the history of abuse toward you provides an understandable reason for doing so. So try to muster up another reserve of strength, and carry on, keeping your children in your care as much as possible.
Work hard to get along with people involved in your case. Depending on how your luck goes, you may sometimes have to deal with court employees, judges, custody evaluators, or mediators who are arrogant, disrespectful, irresponsible, or simply not terribly smart. You may be horrified when you see them getting sucked in by the same man who was so cruel to you — and perhaps to your children as well — and fawning over him as if he were the Father of the Year; some days you may feel an overwhelming urge to scream. But in the family court system, mothers tend to be judged by stricter standards than fathers are, and a stark bias turns up in professional responses to women’s anger. When a man expresses anger, or even somewhat explosive rage, court personnel may say, “What do you expect the guy to do? He feels like he’s gotten such a raw deal, and he sees the court system as stacked against him.” But faced with a furious woman, they tend to react with strong disapproval, an may begin to discredit her reports because she is “too angry” or “aggressive”. So as unjust as it is, try to absorb the subtle insults and injustices from these professionals who have so much — too much — power over your destiny and that of your children, and wait until you can vent out your fury alone or with loyal friends. Stand up for yourself as calmly and reasonably as you can, and stay focused on living to fight another day.
Face up to your own issues and deal forthrightly with them. You are unlikely to succeed in custody and visitation litigation if you are running away from your own problems with alcohol or drugs, emotional instability, or abusing or neglecting your children. Try to be honest with yourself and move quickly to seek help where you need it, such as substance abuse treatment or parent training courses. I do not mean that you should be carelessly honest with court personnel, as they may use your openness against you later, but do confront your issues rather than avoid them. In the long run your chances of keeping custody of your children and protecting them from abuse will grow if you yourself are growing.
Draw on a wide range of resources. On theResources, page of this website you will find an extensive listing of books, videos, toll-free numbers, and other resources for abused women who are involved in civil litigation. Reach out for help in every direction that you can think of, and even more so if you are pro se or have a lawyer who is not carrying the ball that well. Custody litigation can take a powerful toll on a woman’s emotional health, especially when she is already carrying the effects of abuse, so reach out for professional help if you need it, making sure to work with a therapist who understands post-trauma symptoms and appropriate healing approaches.
Testify. I have been involved in several cases that were going badly until a trial or hearing finally occurred where the woman got a chance to testify, and that turned in a significantly better direction once the judge heard her tell her own story in detail. No strategy in family court is foolproof, but making your voice heard in a context where you get to speak for an hour, or for many hours, instead of for five minutes, can strengthen the position of the abused woman and weaken the ability of the abuser to put on a false front.
Focus on the long term. Many abusive men, though not all, eventually unravel in litigation, hitting a limit on how long they can convince everyone, including their own children, that they have no abuse problem. In some cases you may not be able to defeat an abusive man in court right now, but if you are able to create structures that give him some responsibility and accountability, he will sink himself over time. Keep working on yourself and on your own relationships with your children, and focus on helping them heal and grow emotionally — which is the subject of the upcoming chapter.
Involve yourself in the growing movement demanding rights for protective parents. If your court case has gone badly, you can help yourself heal from this double experience of abuse — first by your partner and then by the court system — by getting involved in organizations that are fighting for the rights of mothers to protect their children from abuse. Your own struggle need not be in vain, because you can help to ensure that other women and children are not put through the hardships that you have endured. (See the section on movement-building below)
Reach out to all possible resources. Look under “Child Custody, Divorce, and Child Support” on the Resources page [LINK] of this website.
(The above section was adapted from When Dad Hurts Mom: Helping Your Children Heal the Wounds of Witness Abuse by Lundy Bancroft, Berkley Books, 2003)
In the long term, the only reliable way to keep children safe is to bring about a revolutionary change in how family law courts across the continent respond to child custody and visitation disputes, especially those containing reports of domestic violence or severe psychological abuse, child physical abuse, and child sexual abuse. These reforms need to require the courts to follow rules of evidence and operate in an unbiased way, and need to involve better oversight of courts by administrators and by appeals courts. We probably also need to move away from the single-judge system, which gives an unreasonable amount of power to one individual over decisions that can harm children (and parents) for the rest of their lives. These reforms also need to specifically address gender bias in the child custody system, because mothers are being targeted for especially horrible treatment in the courts. Finally, the system by which attorneys, custody evaluators, guardians, and psychological evaluators are paid need dramatic reformation, so that a family’s resources go primarily to the children’s future, not into the pockets of professionals.
The key to building a successful movement for family justice is to have protective mothers themselves occupying the key positions of leadership within the movement. Allies also have an important role to play. For example, there are many men who are interested in being active in building this movement, especially the brothers, fathers, and new partners (new husbands and boyfriends) of protective mothers, who have witnessed up close what happens when a woman attempts to protect her children from a violent father post-separation.
There are many organizations nationally working for custody justice for protective mothers, and for protective parents of both sexes. A national organization that I am part of, the Protective Mothers Alliance for Justice, is committed to promoting the leadership of protective mothers themselves and to helping build a coordinated national movement of mothers and their allies.
THE PROTECTIVE MOTHERS ALLIANCE FOR JUSTICE
The Protective Mothers Alliance for Justice (PMAJ) is a national organization devoted to bringing about dramatic reforms in the treatment of abused mothers and abused children in family law proceedings. Our group puts the leadership of protective mothers at the forefront, although other women and men are welcome to join as allies.
Among the many common family law practices that we work to stop are:
- The granting of custody of children to men who abuse women
- The granting of custody of children to perpetrators of sexual abuse
- The granting of unsupervised contact with children to abusers with no requirement that they overcome their abusiveness
- Labeling protective mothers as “parental alienators” and punishing them on that basis for their appropriate protective efforts
- Misusing psychological testing to support abusive fathers
- Forcing protective mothers to spend tens of thousands of dollars on litigation, money that could have gone to building their children’s future.
PMAJ works to stop these practices and reform family law courts, through street protests, letter-writing campaigns, media outreach, developing support groups for protective mothers, public speaking, and other social change strategies.
If you are interested in starting a local chapter of PMAJ, we ask that you do the following:
- 1) Read the list of agreements below and make sure that you are comfortable with them and that they fit your goals.
- 2) Call or email us to give us the following information: a) Your name and contact information, including email address, b) The name of your group and the town/city and state in which it is based (if you don’t have a name for your group, you can call it “Protective Mothers Alliance for Justice — _______(your location) Chapter”).
- 3) Give us a brief description of where your group stands currently, such as how many members you have (one is fine – you have to begin somewhere), what next steps you envision taking, and what kind of help or advice you would like from us.
- 4) Let us know whether you want to hear about national projects that we need volunteers for, that your group might be able to take on, such as assembling a list of professionals nationally who are willing to provide expert testimony, compiling a list of resources for women who are representing themselves, creating a guide to community organizing strategies for protecting mothers, and many other pieces of necessary work that we could review with you.
Mary Richmond, Director — (518) 331-9349
Lundy Bancroft — (413) 582-6700
Please leave us your email address if you don’t succeed in reaching us.
Agreements that members and member groups are asked to follow:
- 1) We support the custody rights of mothers, with an understanding of the unique discrimination, abuse, and denial of basic human rights that mothers face as women in the family law system.
- 2) We respect the anonymity of all protective mothers we work with, except where explicitly agreed otherwise by the mother.
- 3)We only offer advice to women who request it. We respect women’s right to decide for themselves what way of handling their case is best for them and for their children. We recognize the commonality of the injustices that protective mothers suffer, but we also recognize the uniqueness of each mother and of each legal case.
- 4)We intend to be an organization largely made up of protective mothers themselves. We support the leadership of survivors, and we support the right of survivors to have the critical say over the running of their own organizations.
- 5)We treat all mothers with equality and respect regardless of race, level of income, sexual orientation, or political opinions.
- 6)We strive to treat each other with kindness, patience, supportiveness, and empathy, and without judgment or criticism. We appreciate each person’s strengths, and strive to learn from each other. We share experience, strength, and hope. We share time speaking and time listening.
- 7)We run our groups democratically, with each member having an equal say.
What Member Groups Can Expect from the National PMAJ Office
We are here to support and assist your local efforts. Specifically, you can count on us to do the following:
- 1) Help you plan and strategize.
- 2) Assist with resolving conflicts that may arise within your group that interfere with your effectiveness in taking action.
- 3) Offer national leadership trainings periodically that you can attend.
- 4) Work together with you on any project that has national relevance (such as forming lists of expert witnesses, creating a detailed national statement about the necessary reforms, or performing scholarly research)
- 5) Keep member groups informed of each other’s efforts through a periodic newsletter.
What the National PMAJ Office Needs From You
- 1) Please keep us informed of what your group is doing, so that we can share information about your efforts with other groups. Knowing that we are not alone is the key to staying inspired. We will be sending out periodic newsletters by email to keep all member groups up to date.
- 2) Please let us know quickly when your group is having difficulties, such as internal conflicts or negative publicity, so that we can help.
- 3) Your national office cannot expand its role without funds. We are pursuing various funding sources, but in the mean time we also ask that local group members send an annual contribution to the national office if they are able. We ask for between $10 and $15 per year from anyone who can afford that amount.
STRATEGIES FOR LOCATING OTHER PROTECTIVE MOTHERS IN YOUR GEOGRAPHICAL AREAThe first step to building a chapter of PMAJ is to locate other women who have experienced abuse of their rights in family law proceedings. This recruitment will be an ongoing need for your group. Here are suggestions for how to find each other:
- 1) Ask your nearest program for abused women to refer mothers to you that are having bad experiences in custody proceedings.
- 2) Put a notice about your group on bulletin boards and in your local newspaper.
- 3) Sit in at court to observe hearings, and approach mothers during breaks who appear to be dealing with abusive ex-partners or who are being mistreated by court personnel.
- 4) Ask local therapists and community mental health centers to refer protective mothers to you.
- 5) Create a brochure about your group to circulate locally.
Mothers can face a tough decision about their own safety when working to form a PMAJ group. On the one hand, you need to put your name and phone number on flyers and notices, so that other mothers can connect with you. On the other hand, judges and custody evaluators sometimes retaliate against mothers who are known to be taking their experiences public or becoming activists, by doing even worse things to the mother.
Although there is no easy way to resolve this bind, we have a couple of suggestions; 1) See if an ally, male or female, who does not have a court case, is willing to be the initial contact, who then funnels calls to you; 2) Use an email address that is not obviously connected to you, and have mothers connect to you at that address first, before giving them your name or phone number.
STRATEGIES FOR SURVIVING YOUR OWN CUSTODY LITIGATION
- 1) Find women whose cases are in the same court as yours, or even before the same judge, and attend each other’s hearings for support and to let the court know that it is being watched.
- 2) Find community leaders who are sympathetic, to be influential allies, and to be present at hearings when possible.
- 3) Form a chapter of the Protective Mothers Alliance for Justice.
- 4) Bring at least two people with you to each hearing if possible.
- 5) Find an expert witness if possible. The expert does not necessarily have to be a person with tremendous academic credentials, if you cannot afford the expense of that kind of expert. The Internet is your best bet for tracking down possible experts, but also try your local battered women’s program, your state coalition of battered women’s programs, and some of the other phone numbers listed in the “Child Custody, Divorce, and Child Support” section of the Resources page of this website.
- 6) Look for ways to keep your case out of court.
- 7) Build a network of emotionally supportive allies.
- 8) Keep working on having the best possible relationship with your children, and keep reaching to be the best parent you can be.
- 9) Think long-term about the strategy for your case and about approaches to keep your children emotionally well and strong.
- 10) Listen carefully to your intuition (even when it means not following the suggestions above). When you find it necessary to take risks (such as to ask for a trial), reflect on what timing is best for taking that step, and try to be sure that you have the necessary support to take it on.