In today’s literature review, I take a look at an article by Dana Harrington Conner, Associate Professor of Law and Director of the Delaware Civil Law Clinic at the Widener University School of Law. In this article, the author outlines several factors that make co-parenting between a batterer and his victim unmanageable at best. You may review the full article here.
Conner, D. H. (2011). Back to the Drawing Board: Barriers to Joint Decision-Making in Custody Cases Involving Intimate Partner Violence. Duke Journal of Gender Law & Policy, 18(2), 223-260.
In this article, Conner argues that a joint-custody arrangement when intimate partner violence is a factor inherently goes against the children’s best interests. A joint-custody arrangement may only be successful when both parents are able to freely communicate their opinions and cooperate to make decisions about their children. This type of arrangement may only exist in a situation where the balance of power is relatively equal between the two parties.
The goal of a joint-custody arrangement is to create a situation in which both parents have an equal chance of contributing to the decision-making process in regards to childrearing. However, the existence of intimate partner violence relies on the ability of one partner to shift the majority of the power in the relationship to himself. Such a situation eradicates the likelihood that the powerless party will be allowed any input when making decisions for the children. This imbalance of power ultimately leads to a sole custody arrangement in fact – despite the existence of a joint custody order – in which all decisions are made by the battering parent.
‘The feasibility of cooperative parenting in custody cases involving domestic violence is doubtful for a number of reasons. First, unlike nondomestic violence cases where conflict between separating parents tends to dissipate over time, the conflict in cases involving battering often escalates at the time of separation and is more likely to continue over time” (239).
Ordering a joint-custody arrangement when intimate partner violence is a factor puts the abused parent and the children at greater risk for future abuse. Additionally, Connor cites research that has found that meeting the needs of the battered parent is typically in the best interests of the children.
Unfortunately, many battered women choose not to request sole custody, fearing that they could end up losing custody altogether. “Friendly parent doctrine” is one consideration that often places the children of a batterer at risk. This principle encourages the courts to consider which of the two parents seems more likely to encourage a relationship between the child and the other parent. The parent who is deemed to be more “friendly” in this regard will enjoy an increased likelihood of being granted sole custody.
While this line of thinking may be useful in a child custody case that does not include an element of domestic violence, it can backfire on the battered mother who chooses to seek sole custody of her children for their protection. In requesting sole custody, she places herself at risk for being viewed as uncooperative, thus increasing the likelihood that custody may be handed over to her abuser. The article cites this principle as one of the leading causes that battered women are reluctant to seek sole custody in the first place.
“What our system fails to understand is that battering has very little to do with the actions of the victim parent and everything to do with the behavior of the batterer. As such, there is much to suggest that abused parents request sole custody as a protective measure in direct response to the behavior of their abusers: abusers who often present a risk to the children, are poor role models, make risky decisions, and lack the ability to engage in shared decision-making” (243).
Unfortunately, there is little consistency in how the courts approach this issue, with some judges placing the existence of intimate partner violence at top priority while others completely dismiss the issue as irrelevant to the custody decision. In many cases, judges have actually (erroneously, I might add!) determined that the existence of intimate partner violence has nothing to do with the child or the child’s relationship to his or her parents.
In this author’s professional opinion, battered mothers should almost always be awarded sole custody of children when the intimate partnership relationship comes to an end. The presence of intimate partner violence “restricts the abused parent’s right to freely engage in joint decision-making” (253). Additionally, the same characteristics that drive an individual to commit intimate partner violence also preclude that individual from making mature and responsible parenting decisions that place the children’s needs and best interests first.
When given the power to control childrearing decisions, the batterer is also given the power to continue to control the other parent. The ongoing intimidation and hostility that is created by such a situation can have long-term negative consequences for the health and wellbeing of the children. In the long run, it is in the best interests of the children that they no longer be exposed to the battering parent once the battered mother has gathered the resources necessary to remove them from this inherently harmful environment. It is up to the court system to understand these issues and offer the battered mother the necessary support to help her extract her child from the violent household while doing as little damage to them as possible.
“When the court grants an abusive parent joint legal custody, it makes the following declaration: we trust the batterer’s judgment, we find his criminal behavior to be irrelevant to the court’s custody determination, we find the batterer to be an appropriate role model for his children and we believe he is capable of cooperative parenting with his victim” (257).
What do you think? Please share your thoughts in the comments below.
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