There is no more complex or painful problem in family law practice than protecting the interests of children and adults in custody negotiations where domestic violence (abuse, neglect) is present in the household. This brief guidance is intended to provide basic background information and strategies for seeking just and reasonable custody outcomes in divorce actions where adults and/or children are (or have been) subjected to physical and emotional abuse.
DEFINITION OF DOMESTIC VIOLENCE
(As used in this Guidance)
This discussion recognizes that children and adults can be victims of abuse which may include physical violence, sexual abuse, psychological intimidation, economic coercion, and child neglect. There is growing evidence that abuse victims (adults and children) are often subjected to adverse court rulings that leave them vulnerable to continued abuse and control by abusers even in the context of court-ordered custody decisions. My purpose here is to suggest strategies and actions during divorce proceedings that fulfill the overriding principal in child custody law: The Best Interest of the Child Standard.
What is The Best interest of the Child Standard?
Under this standard, courts are required to consider all relevant factors in determining what types of custody arrangements are most appropriate (the child’s best interest) for the child’s physical health, mental health, intellectual development, moral needs, and spiritual needs.
In New York State there are two primary legal imperatives relative to abuse:
- NEW YORK General Provision Acts of domestic violence are to be considered in determining the best interests of the child. N.Y. C.L.S. DOM. REL. LAW § 240 (2005).
- Custodial/Visitation Interference. It is defensible to remove a child in an emergency to protect the child from abuse, threatened abuse, or abandonment. N.Y. C.L.S. PENAL LAWS § 135.50(2) (2005).
Bill of Rights for Children in Divorce Proceedings
The NY State Unified Court System has developed a Parent Education and Awareness Program handbook for parents that establishes a Bill of Rights for Children Whose Parents are Separated, Divorced or proceeding with divorce.
Children in New York are guaranteed:
- The right not to be asked to “choose sides” between their parents.
- The right not to be told the details of the legal proceedings going on between their parents.
- The right not to be told “bad things” about the other parents’ personality or character.
- The right to privacy when talking to either parent on the telephone.
- The right not to be “cross-examined” by one parent after spending time with the other parent.
- The right not to be asked to be a messenger from one parent to the other.
- The right not to be asked by one parent to tell the other parent untruths.
- The right not to be used as a confidant regarding adult matters.
- The right to express feelings, whatever those feelings may be.
- The right to choose not to express certain feelings.
- The right to be protected from parental “warfare.”
- The right not to be made to feel guilty for loving both parents.
Common Questions in Custody Negotiations Involving Domestic Violence
- How Important is Legal Advice? Complexities involved in custody negotiations, and the importance of adequate representation before the court, require legal counsel. If you are unable to afford the cost of legal counsel you should consult with your local legal aid society, and also seek advice from advocacy groups such as domestic violence advocacy organizations. For example, the New York State Coalition Against Domestic Violence provides various resources and can be contacted at: http://www.nyscadv.org.
- Must the Court be Informed about Domestic Violence? The judge must be given the facts about domestic violence without delay for proper custody decisions to be made that are in the best interest of children and parents. Insist that your lawyer present evidence of abuse where it exists and resist efforts to proceed with custody negotiations without considering such evidence.
- What Kind of Evidence of Abuse is Helpful? Unsubstantiated claims of abuse against parents in custody negotiations are generally not admissible in court and can be counterproductive. If abuse is claimed, the accusing adult is best advised to compile and present evidence as specific and comprehensive as possible. Examples of evidence include: witness statements and affidavits from family, friends and others; police reports of family violence; medical reports; reports from school authorities regarding evidence of child abuse; photographs of injuries and other photographic evidence such as vandalism; evidence of harassment such as telephone logs, threats that can be substantiated. Accusers should maintain a log of specific information about the alleged violence, that includes dates, times, places, and events. If you or your children have been abused, the best way to defend against false claims that you are the abuser is to maintain records and evidence of the abuse you are claiming.
- How to deal with Urgent Protection Issues during Custody Negotiations: For this you will need the services of an experienced lawyer who can help ensure that you and your children are adequately protected from the immediate threat of violence. Orders of protection from a domestic abuser are available through the court, as are the services of local law enforcement agencies. Urgent Protection needs must be brought to the court’s attention without delay.
JUDICIAL STANDARDS AND THE ROLE OF THE COURT
How Judges are Expected to Rule in Child Safety Matters
The National Council of Juvenile and Family Court Judges clarified its position concerning child custody where family abuse is present in its publication for judges entitled: A Judicial Guide to Child Safety in Custody Cases:
“Generally speaking, it is considered detrimental to a child and not in his or her best interest to be placed in sole custody, joint legal custody, or joint physical custody with the abusive parent. The most important protective resource to enable a child to cope with exposure to abuse is a strong relationship with a competent, nurturing, positive adult— most often, that adult will be the non-abusing parent. Providing for the physical, mental, and emotional safety of the child will include providing safe visitation by the abusive parent, if truly safe visitation can be arranged. You (judges) should award visitation to an abusive parent only if you (judges) find that adequate provisions for the child’s and the abused parent’s safety can be made, assuming that contact with the abusive parent is advised at all.”
What to Do About Excessive Requests for “Discovery” by Your Hostile Spouse?
Discovery is a court procedure through which each party can obtain evidence from the other party (or parties) by means of requests for documents, depositions, and other information that supports the petitioner’s case. Domestic Abusers with adequate financial resources sometimes use the child custody process to manipulate negotiations to their advantage by excessive appeals to the court for this kind of information.
Judges are mindful of excessive requests for discovery and are empowered to control this practice in ways described below. The National Council of Juvenile and Family Court Judges’ Judicial Guide to Child Safety in Custody Cases provides specific guidelines to judges regarding these matters. You and your attorney should be aware of these guidelines if you feel victimized by this technique.
Regarding excessive filings and discovery motions, judges can:
- Order the parent bringing excessive motions to pay attorney’s fees and costs to the other parent
- Order the parent who files frivolous motions to reimburse lost wages and other expenses of the other parent
- Excuse the at-risk parent from appearing at hearings or permit the at-risk parent to appear by telephone
- Order that no court appearances may be scheduled without prior judicial approval
- Prohibit any discovery or court appearances that directly involve the children in depositions
- Ensure that the at-risk parent has adequate resources to comply with appropriate discovery
- Control the discovery process by requiring that the abusive parent show the relevancy of requested deposition testimony and other potentially harassing discovery
- Ensure that the abusive parent has no physical access to the at-risk parent during the discovery process
- Ensure that the at-risk family members are adequately protected during the pretrial process (e.g., private security, to be paid for by the controlling party, or orders that the abusive parent not be present during depositions).
Regarding the filing of petitions to modify custody orders, judges can:
- Keep in place any judicial orders that enhance the safety of the at-risk parent or child
- Require compliance with judicial orders unless there has been a significant change in circumstances
- Prohibit contact between the parents, including during visitation exchanges
- Keep all protections in place, including no contact with the child, if that judgment was part of the original order, absent strong evidence of change and compliance
Regarding Multiple requests for continuance, judges can:
- Deny requests for excessive or unnecessary delay
Regarding abuse of the ex parte process, (hearings requested by one party to consider temporary orders like a restraining order or temporary custody) judges can
- Determine whether the at-risk parent is available for the hearing and whether adequate notice was given
- Determine whether a true emergency exists
- Use collateral information to assist in making a decision; for example, determine whether any protection orders have been entered against either parent
- In post-divorce proceedings, attempt to determine whether the claims asserted in the ex parte motion were raised in prior litigation
- Consider the length of time since any prior custody litigation
- Consider whether prior allegations of abuse have been raised in prior court proceedings or with children’s protective services.
Your Demeanor before the Court is Important: To the extent possible, and understanding the inherent trauma, and dangers you and your children face if you have been abused, you should nevertheless strive to be non-combative, focused, and factual before the court. This will not be easy and can be facilitated by an experienced, competent, and compassionate lawyer.
PARENTAL ALIENATION SYNDROME
We know that domestic violence and child abuse is present in many families involved in child custody negotiations. It is also common for one or both parents to exaggerate character flaws in the other and to allege abuse unjustly. In my practice, it is necessary to be acutely aware of family abuse issues and advocate for a just resolution. I must also be sensitive to false claims that punish one parent and can be extremely harmful to children, as well as to the accused parent.
One of the most perplexing problems presented in high conflict child custody disputes occurs when one parent’s credibility is attacked by the other on the basis of a theory called “Parental Alienation Syndrome” (“PAS”). According to the theory, one parent systematically manipulates the child to hate, fear, or reject the other parent. Such denigration results in the child’s emotional rejection of the targeted parent. Psychiatrist Richard Gardner developed the concept of “parental alienation syndrome” defining it as:
“…a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.”
While continuing to be mindful of the devastating impact of parental abuse, we must also be concerned with the effects of PAS upon children whose well-being is the primary concern in custody negotiations. Psychologist Edward Kruk, Ph.D., (Associate Professor of Social Work at the University of British Columbia, specializing in child and family policy.) succinctly describes current scientific thought about PAS in a recent article published in Psychology Today (https://www.psychologytoday.com/us/blog/co-parenting-after-divorce/201304/the-impact-parental-alienation-children):
” There is now a scholarly consensus that severe alienation is abusive to children and is a largely overlooked form of child abuse as child welfare and divorce practitioners are often unaware of or minimize its extent. As reported by adult children of divorce, the tactics of alienating parents are tantamount to extreme psychological maltreatment, including spurning, terrorizing, isolating, corrupting or exploiting, and denying emotional responsiveness. For the child, parental alienation is a serious mental condition, based on a false belief that the alienated parent is dangerous and unworthy.
The severe effects of parental alienation on children are well-documented—low self-esteem and self-hatred, lack of trust, depression, and substance abuse and other forms of addiction are widespread, as children lose the capacity to give and accept love from a parent. Self-hatred is particularly disturbing among affected children, as children internalize the hatred targeted toward the alienated parent, are led to believe that the alienated parent did not love or want them and experience severe guilt related to betraying the alienated parent. Their depression is rooted in feelings of being unloved by one of their parents, and from separation from that parent while being denied the opportunity to mourn the loss of the parent or to even talk about them. Alienated children typically have conflicted or distant relationships with the alienating parent also, and are at high risk of becoming alienated from their own children…”
In a related article in Psychology Today, ( What kind of parent lies to turn their kids against the other parent?) Susan Heitler Ph.D., notes: “A survey taken at the Association of Family and Conciliation Courts’ annual (2014) conference reported 98% agreement “in support of the basic tenet of parental alienation: children can be manipulated by one parent to reject the other parent who does not deserve to be rejected.”