Domestic Violence and Child Custody: A 4-Part Model for Helping Judges Make More Informed Decisions

Family Court judges should consider the impact of violence on families when making decisions about child custody and visitation, according to Kristine Lizdas, a managing attorney at the Battered Women's Justice Project. In this podcast, Lizdas discusses the Justice Project's four-part model for helping judges make more informed decisions. June 2013

The following is a transcript:

KRISTINE LIZDAS:  [While introductory theme music plays] This person, the person they're abusing, could be bringing a great deal, could be wonderful caretakers for their kids, and could be providing so much for their kids, if it were not for the battering.

ROBERT V. WOLF:  [As introductory theme music ends] Hi, I'm Rob Wolf, director of communications at the Center for Court Innovation.  Welcome to another New Thinking podcast. Today I'm speaking with attorney Kristine Lizdas about domestic violence cases and their impact on child custody and visitation. Christine serves as managing attorney for the Legal Policy Program of the Battered Women’s Justice Project, which is a national resource center on domestic violence legal policy issues. Welcome to New York and the Center for Court Innovation.

LIZDAS:  Thank you very much.

WOLF:  You're based in Minnesota, but you're here today at our open house. The Center for Court Innovation serves as the Office on Violence Against Women’s comprehensive technical assistance provider for its courts program, and today and tomorrow, recipients of grants have come here with their multi-disciplinary teams to observe model domestic violence courts in New York, and hear from experts like you on topics related to planning and implementation of domestic violence courts. So I know you're here today speaking to the group this afternoon about custody and visitation, and I thought a good way to start our conversation was just to ask what makes custody and visitation cases that involve domestic violence a challenge, or more complicated than the average case?

LIZDAS:  We have, in the battered women's movement, done a lot of work in terms of reforming the criminal justice system so it handles the crime of domestic violence better, as a crime, as a wrongdoing of the violation of a right. Talking about domestic violence in the context of family court is more complicated.

The way family court is structured and set up is not conducive, does not allow for an assessment of how domestic violence operates—meaning how is it used in the family, and to what effect? And what impact does it have on the parenting capacities of both parents? What impact is it having on the kids?  Family court is designed to kind of divvy things up.  Family court is not designed to say, “This is our situation. How do we kind of move forward from here, given who’s involved in this family and what the family's history is?”

WOLF:  Maybe you can just offer an example of how that can impact a particular family.

LIZDAS: In families where domestic violence exists, or domestic violence is alleged, there can be violence that has been very isolated, that the children have been very sheltered from it, but there are going to be other situations in battering violence and coercive and controlling violence where the kids are brought in more deliberately, either because they're being exposed to the continuum of violence going on in that family, or because they are being used to either participate in the abuse of their spouse, or the same sort of demeaning or controlling, or crazy-making behaviors that a batterer might perpetrate in a domestic violence situation, is being perpetrated against the family as a whole. 

The kids are going to have a variety of reactions—everything from no reaction at all, to feeling very aggressive toward the abused parent, feeling very protective of the abused parent.  It's going to manifest in problems, you know cognitive and behavioral issues that come up for the kids, and until we really have a handle or understanding on really what's happening to the kids, we don't know what kind of separation agreements, what kind of parenting schedule, what type of supervision, or what types of programming or services are appropriate for that family.

WOLF:  How are you recommending that family courts address that issue, because it does sound like it's very complicated?

LIZDAS:  We engaged in this project several years ago to develop a framework for family court practitioners so that they can better identify, they can better understand, and then account for the context and the implications of domestic violence in child custody cases, and in parenting time and visitation determinations. 

At this stage of our project, we are recommending a four-part analysis, which is very simply that we need to institute tools into various parts of our family court systems that help us to better identify the existence of domestic violence, whether alleged or not, that we have implemented protocols within the family court system and help us better understand the nature and the context of the violence. Who’s using the violence to what end? What impact is it having on the family? 

And then the hardest part, the third step of this four part framework. is then to determine the implications of abuse and research is emerging on how to recognize that, how to screen for it, how to identify it. If kids are having trouble with sleeplessness or trouble with school, or are showing strong attachments to either parent, to understand which of those behaviors, which of those responses are a response of the coercive and controlling violence, what might be the response of other things going on with that family. 

And finally, the fourth step in our framework is then, indeed, to account for the abuse in our decisions in court and in what we do in the parenting plans going forward.  It would be our proposition that if you have identified actual coercive and controlling violence or battering violence in a family, it’s very likely that some of that coercive and controlling violence is going to continue post-separation, that the dissolution and the parenting plan doesn’t put a stop to it. 

Some judges, some court practitioners do see that perpetrators will be motivated by their kids, and access to their kids. So family court judges and family courts have this opportunity, and the proper motivation, to get perpetrators into services and into programs, to keep an eye on that perpetrator—to be like a mentor, to be a coach, to be a motivator to keep that perpetrator from using coercive and controlling violence, and they can order graduated visitation, graduated parenting time.

WOLF:  So the judges can use this leverage—access to the children, basically: “You can get thus and such visitation under these conditions if you receive these services, if you engage in this particular program?”

LIZDAS:  Yes, and it’s not only that it is an effective motivator for change, but its also completely logically tied to what is best for the children. We do want children to be able to have healthy relationships with both parents and it’s in the children’s best interest if we are able to figure out how to work with the perpetrator over time and help them develop their parenting capacity.  I think it’s been the observation of a lot of people who work with parent batterers that they really aren’t aware of how their battering and coercive and controlling violence affects their kids. And in the current court system, we provide motivations for parents to attack each other. We put them in this sort of adversarial system that encourages them to sort of undermine each other’s parenting capacity, and we don’t have enough of a mindset or framework in family court to say that what we need to be doing, really, is supporting each other’s parenting capacity and if you’re violent toward your partner, if you’re committing coercive and controlling violence, you know, you're taking something away from your kids and we need to be drawing that connection, obviously.

WOLF:  That point you just made, that was a much broader point about any family court case involving custody or visitation.

LIZDAS:  It is, that’s true, and it would apply in cases that we technically, or traditionally call high-conflict cases, which is jargon in the family court system, which is applied very broadly to any parties that don’t seem to be able to settle on their own, or fail in alternative-dispute resolution.  So that is a message for high-conflict parents that you need to understand better how your conflict is impacting your kids. 

In battering situations, or course, or controlling situations, where we really want to focus is on the person perpetrating the violence—make sure they understand how this person, the person they’re abusing could be bringing a great deal, could be wonderful caretakers for their kids, could be providing so much for their kids if it were not for the battering.  What’s concerning is the family court system that doesn’t have a sophisticated analysis is going to look at battering cases and they are going to call it high conflict—and then they’re targeting and directing their messaging to both parties, and their messaging’s not really the appropriate messaging either. It’s “Get along.”  It’s “Get along or you’re going to hurt your kids.” That’s not the message that’s appropriate if one person is using coercive and controlling violence against the other.

WOLF:  So if people want to find out more about these issues or some of the skills that you’re developing, what should they do? 

LIZDAS:  They should contact our office, the Battered Women’s Justice Project.  Our website is www.bwjp.org, and our toll-free telephone number is 1-800-903-0111, enter prompt 1 to get to our office where the custody project is based.

WOLF:  I've been talking with Kristine Lizdas about domestic violence cases and their impact on child custody and visitation.  Kristine is the managing attorney for the Legal Policy Program of the Battered Women’s Justice Project. Good luck with your presentation this afternoon.

LIZDAS:  Thank you very much.

WOLF:  [While theme music plays] I'm Rob Wolf, director for communications at the Center for Court Innovation.  To listen to this podcast or others, you can visit our website at www.courtinnovation.org  or subscribe to our podcast on iTunes. Thanks for listening.

June 2013