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Archives > Spring 1994 articles
Custody and Access or Contact and Control?
Because custody and access disputes are viewed as two "equal"
parents fighting over a child, more fathers are getting custody,
joint custody and generous access, even if they have been
abusive. When men apply for custody they are successful over
50% of the time. Judges and system professionals often believe
that when a father applies for custody he must be a good father.
It is more likely that abusive men are over represented in
the group of men who fight for custody; they are more likely
to use the court system to assert their rights.
There is a false perception that when a woman leaves a battering
relationship the violence stops. It actually increases. The
battering man uses the custody and access battle to continue
abuse and control of the mother through the children.
Battered women are at a particular disadvantage in custody
disputes: they do not "present well" in court; because of
their isolation they rarely have supportive witnesses to verify
their story; their lawyers often tell them that raising abuse
can work against them in court; and their socialization as
"good girls' means they are not accustomed to fighting men
in a court of law.
If an abusive father is unsuccessful in getting custody
he uses the access visits to abuse the children and control
the mother. Access problems exist on a continuum, from men
not showing up for visits to children being sexually abused
during the visit. Abusive men threaten to ruin the woman's
life, abduct the children or kill her. They use the access
exchanges to harass, threaten and physically abuse her. Problems
around access are consistent with patterns of behavior seen
in the battering relationship.
Access visits increase the batterer's contact with the woman
and children. This leads to increased abuse of the children
because the mother is not longer available to protect them.
Abuse is also transferred onto the children in the form of
anti-mother conditioning, including:
- attempts to undermine the children's respect for the mother
by calling her a "whore", a "stupid bitch" or lazy;
- threats to harm or kill the mother;
- grilling the children for information about the mother
(e.g., who is she sleeping with?);
- blaming the mother for breaking up the family and ruining
the father's life;
- telling the child to keep secrets and that their mother
doesn't love them.
Abusive fathers also use the visits to get emotional support
and nurturing from the children. These men transfer the need
previously filled by the mother to the children. This behavior
confuses the child, who sometimes feels a need to take care
of and protect their father. Children return from access visits
with abusive fathers very upset. Some children act out aggressively
- throw things around, scream, and hit other kids. Other children
withdraw and become depressed. Some children act out these
behaviors only around the "safest" person - the mother. Children
who are sexually abused often disclose only to the mother
after she has left the abuser. Professionals do not always
believe the mother or child, and mothers are accused of brainwashing
their children to get custody.
Abusive men often appear very loving to the family court
workers and psychologists because they seen to express a genuine
interest in their children. Even when professionals believe
there is abuse, they hold certain biases about women, such
as blaming women for returning over and over again to their
abusers. It seems hard to understand the way the woman is
emotionally and practically linked to her abuser and how she
is moved to give him another chance.
Workers in the system often miss detection of an abuser.
They look for men who seem to hate their wife and want the
relationship to be over. But men use violence and abuse to
control their families because they "love" them and want to
continue the relationship at any cost. So it seems obvious
to court professionals that any protestations of love and
interest in the family are sincere. It does not follow, however,
that the abuser is capable of a safe relationship with the
mother and child because he presents with such sincerity.
Women stay in abusive relationships because they are moved
by the "sincerity" and emotional depth of their husband. They
see his violence and control as something that their love
and understanding can alleviate. This is the old fairy story
of the princess and the frog. If enough love and understanding
is expressed by the woman the abuse will stop.
The woman eventually realizes that no amount of understanding
will make the man a safe and appropriate father. With great
heartache and strength she leaves him. She has been told by
the so-called "helping" profession that this is the best thing
she can do for her children, and she believes she will be
supported. Women are shocked when they realize that their
efforts are thwarted by system professionals, who repeat exactly
what they experienced in the battering relationship.
Women are devastated by a system that encourages them to
leave the abuser. When they do leave, the violence increases
and they find themselves re-abused by the system. They are
faced with judges who say, "Yes, but did he hit the kids?",
psychologists who say, "He really loves the children, he's
just upset because of the separation from the children," family
court workers who encourage them to mediate with their husband
who has subjected them to years of abuse, and lawyers who
warn them if they bring up abuse or "bad mouth" their ex-husband,
it will backfire because they will be considered to be vindictive
and lying to obtain custody.
Court workers, psychologists, judges and lawyers get caught
in the same trap as the battered woman. They do not hold the
father accountable for his actions, they believe in his sincerity
and pain and that he is capable of being an adequate father.
This perpetuates the cycle of violence.
As abusive fathers are given more and more chances, dangerous
custody and access arrangements continue. Even more bizarre,
the courts sometimes use the children to "heal the father."
Children are sentenced to visit with frightening and abusive
fathers in hopes that he will see the error of his ways and
learn some gentle parenting. Meanwhile, the "best interests"
of the child are virtually ignored in the name of parental
rights. A false assumption exists that children will be more
harmed by not having contact with an abuser, than they will
by being exposed to the abuse and trauma of visits with him.
Common sense dictates an approach that holds men accountable
for previous behavior and protects the child and mother from
more harm. Children are placed at considerable risk when an
abusive father is granted custody and access.
Wife abuse is often ignored and minimized by judges and
professionals in custody and access disputes, because of false
assumptions, such as:
- That wife abusers do not abuse children (Research shows
that child abuse often occurs in the context of wife assault
and occurs after the abuse of the mother).
- That wife beating is a personal and private affair between
the husband and wife and does not affect the children. (In
fact, wife abuse has a profound effect on children's emotional
and behavioral adjustment. Social and emotional problems
are seventeen times higher for boys and ten times higher
for girls than for children who haven't witnessed wife abuse).
- That children are not afraid of their father because
the assaults are not directed at them. (Eighty five percent
of children witness abuse and the aftermath of abuse. Reports
of battered mothers show that children see their mothers
sexually assaulted as well. Children who witness violence
suffer extreme fear and trauma, they live in terror that
their mother will be killed or they will be killed).
- That wife abuse does not affect the father's capacity
for parenting. (Any father who beats his child's mother
is an unfit parent. Studies have shown incidents of child
abuse as high as 70% in homes where there is wife abuse.
Research shows that significant numbers of men who batter
women also sexually abuse their children - especially their
daughters).
- That abuse stops once the woman leaves. (Violence increases
upon separation. Child abuse also increases because the
women is no longer available to act as a distract or to
intervene in abuse. Research shows that abuse of the child
is more likely when the marriage is dissolving and the husband
is committed to continue dominance and control of the mother
and children).
These false assumptions have harmful consequences for battered
women - they minimize the effect of family violence. Women
are continually asked by judges, "Yes, but did he hit the
kids?" Judges fail to realize that when a father batters a
mother it indicates a lack of parenting ability. Children
who witness violence learn to be sexist, that violence is
an appropriate response to anger, and that there are no consequences
for violence. A system that doesn't at least grant supervised
access to a mother seeking protection for her children perpetuates
the cycle of violence.
Although most people would agree that it is not in the child's
best interests for an abusive father to have custody, the
vast majority of wife assault cases are not reported to the
police. Therefore, women have little evidence that abuse has
occurred. When women raise abuse issues they are not believed
and are sometimes punished for attempting to protect their
children.
Some judges apply the friendly parent rule, which favours
the parent for custody who can best facilitate an ongoing
relationship with the non-custodial parent. This has dangerous
consequences for battered woman and their children. The mother
is seen as "unfriendly" for withholding access or asking for
no access, and sometimes custody is removed from the mother
and placed in the hands of the father, thus ignoring the reality
that the battering father uses the access visits as a means
of power and control over the family.
Secondly, the assumption that abusive men shouldn't get
custody does nothing to help the woman who is having ongoing
problems with the father terrorizing the mother and child
through access visits. Even when women and children are believed,
it is difficult to get no access or a supervised access order.
When an order is granted, the supervisor role is often carried
out by a family member, which can lead to further abuse.
Third, while the assumption that abusers should not get
custody and the assumption that abusive fathers should be
supervised on visits are steps in the right direction, the
court definition of wife abuse is extremely narrow. While
there is little argument that using weapons, slapping, hitting,
breaking bones, burning with cigarettes, spitting, strangling
and holding women hostage is abusive, what is not so obvious
to system professionals are other, more insidious forms of
assault.
Children and women who have experienced domestic violence
are victimized further in custody and access disputes. Battered
women continue to be subject to abuse and the father's threats
to kidnap the children. Furthermore, women have poor access
to legal representation. They are forced to rely on legal
aid lawyers who are overwhelmed with their case loads. Lawyers
wish to avoid complex issues such as domestic violence or
sexual abuse. Some women are forced to mediate settlements
with an ex who uses coercion against them, yet presents as
charming to the mediator when attempting to reach agreement.
The lack of support for battered women means obtaining a
restraining order is difficult. Furthermore, family court
restraining orders are ineffective and rarely enforced by
police. Men get the message that they can continue to harass
the mother and child with little consequence. Recently - consistent
with the current gender neutral doctrine in family law - there
has been a proliferation of "gender neutral" restraining orders
in the civil and criminal courts. These orders require both
parents to stay away from each other. This saves the judge
time in determining fault and trivializes that fact that men
are responsible for over 90 % of violence.
Children continue to be sexually, physically, and emotionally
abused on visits, and mothers continue to be abused at the
access exchange. The problems surrounding custody and access
can only be understood in a framework of violence and an understanding
of women's position in the legal system. System professionals
often view "hostility" and "conflict" between parents to be
based on emotional and psychological problems due to separation,
as opposed to legitimate and serious concerns of mothers about
family violence.
Custody and access disputes are not limited to divorcing
parents in conflict, yet the legal system works hard to keep
the violence issue out of the courtroom. Although there has
been some shift in public perception towards wife assault,
custody and access legislation, policy and protocol does not
recognize wife assault or provide remedies.
Too often women are considered vindictive liars for bringing
up abuse. The system should strive toward an adequate analysis
of violence in every case that comes before the court. Custody
and access legislation should clearly spell out the effects
of witnessing wife abuse on children and explicitly state
that a father who hits a mother is an unfit parent.
Georgina Taylor and Ajax Quinby, Facilitators
Custody and Access Support Group, Munroe Transition House
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