Academic journal article Duke Journal of Gender Law & Policy

Can a Leopard Change His Spots? Child Custody and Batterer's Intervention

Academic journal article Duke Journal of Gender Law & Policy

Can a Leopard Change His Spots? Child Custody and Batterer's Intervention

Article excerpt

John and Kathy were married and had a daughter, Mary Elizabeth. (1) Both parents loved their daughter dearly. Although he never laid a hand on his daughter, John continuously battered his wife. (2) After two protective orders failed to stop the abuse, Kathy sought a divorce. (3) Not surprisingly, a bitter custody battle ensued. Despite Kathy's insistence that John's violence should prevent him from having custody or visitation, the court granted John unsupervised visitation every other weekend, one Monday per month, and three hours every Tuesday. (4) After one such visit, Kathy became worried when John did not return three-year-old Mary Elizabeth on time, so she sought police assistance. Upon investigation, police discovered John and Mary Elizabeth in John's truck in the garage at his home. Both were dead of gunshot wounds; John's gun was found in the truck. (5) John had taken anger management classes. (6)

Although this story is an extreme example of what can happen if a batterer is given unsupervised visitation with his child, (7) it anecdotally disproves the all-too-common view of courts that interspousal violence has little to do with parenting ability and thus, merits little consideration in custody decisions. Hopefully, attitudes will continue to change in recognition of the effects such abuse actually has on children.

Clearly, interspousal abuse is a hazard to victims during the relationship. What courts may fail to realize is that it continues to be a hazard to child witnesses and to victims even after the relationship has been legally dissolved. Children who witness interspousal violence often experience emotional difficulties, including anxiety, depression, increased aggression, and even Post Traumatic Stress Disorder. (8) Exposure to interspousal violence during childhood may also lead to involvement in family violence later in life. (9) Children in homes where interspousal abuse occurs are also at a much greater risk of being physically abused themselves. (10) Unfortunately, for victims, divorce is not always the end of the violence. On the contrary, separation often escalates the abuse, and joint custody and unsupervised visitation may give abusers ample opportunity to continue abusing their former spouses. (11) In addition, even if the violence between the former spouses ends after divorce and/or after courts make custody arrangements designed to minimize the contact between the victim and the abuser, there is always the risk that the children will continue to be exposed to interspousal violence if the batterer becomes involved m a new relationship. (12)

In response to the growing body of knowledge about the dynamics of interspousal violence and its effects on children, courts have begun considering interspousal violence in custody decisions. (13) Custody statutes in most states specifically list interspousal violence as a factor to be considered in custody decisions. In some states, there is even a rebuttable presumption that a batterer should not be awarded custody. (14) So, what is a batterer to do if he still wants more visitation with his children? Batterer's intervention programs (15) are one option for treatment of abusive men, and in custody cases courts may look more favorably on men who have completed such programs. (16) But how effective are such programs? Can a court rely on a batterer's completion of such a program to demonstrate that he is "cured" of his violent tendencies?

This note examines the current state of research investigating the effectiveness of such programs in an effort to determine the weight such programs should be afforded in custody decisions. Part I provides a brief overview of the history of custody law and the part interspousal violence plays in custody decisions. Part II looks at the way courts use batterer's interventions in the context of custody determinations. Part III discusses what the interventions are, and Part IV examines current research on the effectiveness of such programs. …

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