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For Domestic Violence Survivors, Family Court Becomes Site of Continued Abuse

Family courts often lean toward joint custody, a preference that some abusers use to continue harassing former partners.

Batterers are more likely to challenge custody than ex-partners who are not abusive. At the same time, family courts lean toward joint custody, a preference that abusers use to continue harassing and exerting control over their ex-partners. (Photo: Family court via Shutterstock)

When Kate finally escaped her abusive husband, she thought that the violence and terror were over. What she learned instead is that, when children are involved, escape and safety become even more difficult as abusive ex-partners use child custody and the family court system to continue their harassment and abuse.

The first time her husband hit her, Kate was pregnant with their first child. He had forgotten his fanny pack at the drug store, Kate recalled. Once at home, she told Truthout, “he smashed me hard on the back of the head and said, ‘How could you be so stupid?'”

It was the first time he had struck her, but her husband had emotionally and verbally abused her for years. “I felt like I was walking on eggshells and was nervous all the time,” she explained. “All I could do was grovel and then go back to the drug store to get it.”

The abuse continued. “Every few weeks there was something,” she recalled. Her husband blamed her for each incident. “There were never flowers or apologies,” she said. “Instead, it would be like, ‘This is your fault. You need to understand that and then we need to move on.'”

Abusive ex-partners frequently continue their harassment and abuse through family court and child custody proceedings.

Still, Kate did not think she was being abused. As she endured her husband’s violence behind closed doors, the rest of the nation was watching the O.J. Simpson trial unfold on television. Kate remembered comparing her situation to that of Nicole Brown Simpson and concluding, “I haven’t been beaten to a pulp where I’m almost dead.”

The violence didn’t stop when the children were born. Instead, it extended to them and became another way for her husband to terrorize Kate. He hit their oldest daughter if she didn’t stop crying or, as a toddler, if she said no to him. He also continued to physically abuse Kate. “He would drag me around the house by my hair,” she remembered.

Then he threatened to slit Kate’s throat. His threat spurred Kate to action. She filed for a protective order and began making arrangements to flee. On Friday morning, she nervously waited for a judge to decide whether to grant her protective order. The judge did and Kate arranged to have her husband served the following day.

On Saturday mornings, Kate normally drove her daughters to ballet classes. That morning, she dressed them in their pink ballet outfits while surreptitiously packing other clothes and their favorite stuffed animals. Once on the highway, they were met by a private protection service that escorted them to a hotel. There, she, her parents and her sister, brother-in-law and their children hid for a week. Kate assumed that, once she filed for divorce, her nightmare would be over. She was wrong.

Despite the order of protection, the family court judge ordered that her ex have regular visitation, including overnight visits. Her ex used their shared custody to continually violate the order of protection. The visits also began affecting their daughters. After each visit, the girls, then ages 2 and 4, would say and do disturbing things. Once, the younger girl told her, “Daddy’s going to stab you with a knife.” Another time, the older girl threatened to throw her doll across the room like her daddy did with her. The girl’s therapist, alarmed that what the child was saying and drawing might indicate sexual abuse, called child protective services twice.

Still, visits continued for nearly three years. Her ex began to show his anger in court and during supervised visits while her oldest daughter’s mental health began to visibly deteriorate. Three years after Kate and her children initially fled her ex, the judge terminated his visits. By then, Kate had been in court every six weeks for three years and spent over $500,000 in legal costs. “My experience was horrific and awful,” she reflected. “I was the bad guy through the whole thing. And I’m one of the lucky ones.”

How Custody Proceedings Become a Site for Further Harm

Kate’s experience is not uncommon. Ending an abusive relationship does not necessarily end the violence and terror, particularly when children are involved. Abusive partners often use custody proceedings to continue their harm through the children, a phenomenon that Dr. Evan Stark, a professor at Rutgers University and expert on domestic violence, calls “tangential spouse abuse.” The American Psychological Association found that batterers are more likely to challenge custody than ex-partners who are not abusive. At the same time, family courts lean toward joint custody, a preference that abusers use to continue harassing and exerting control over their ex-partners.

Joan Meier is the director of Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), which represents abuse survivors appealing custody decisions. She has noted that, while 23 states have legislation favoring joint custody regardless of a parent’s opposition, even states without express laws still favor that arrangement. As an attorney, she has seen this play out repeatedly in domestic violence situations. “Custody litigation is an ‘ideal’ mechanism for denigrating the mother by providing a forum for attacks on her dignity and competence as a mother while enlisting court personnel to join the attack,” she wrote in an article for the Journal of Child Custody.

Part of the willingness to disbelieve abuse accusations, she told Truthout, stems from myths and misconceptions, such as vengeful ex-wives and good fathers who are unjustifiably cut off from their children. In addition, theories of parental alienation and parental alienation syndrome, which posit that malicious mothers allege abuse to punish their children’s fathers, have been championed by men’s rights advocates. These theories influence the ways that family courts treat these claims. When Meier searched all electronically available opinions regarding custody and claims of parental alienation during a 10-year period, she found that fathers brought 82 percent of alienation claims; they won nearly 70 percent of the time, meaning that, in those cases, mothers lost primary custody.

These decisions can be fatal – a 2013 study found 175 documented cases during a two-year period in which children were killed by their fathers after courts refused the mothers’ requests to ensure that paternal visitation was supervised or eliminated. Even when not deadly, these decisions have the potential to expose children to severe physical and sexual abuse as a January 2016 article in The Boston Globe illustrated.

Abuse Survivors Struggle to Be Heard

Sara Ainsworth, now the advocacy director of Legal Voice, has worked as a legal aid attorney, taught at a domestic violence legal clinic and worked with attorneys representing abused parents who are also immigrants. “There’s an enormous bias against anyone making accusations [of abuse],” she told Truthout.

Furthermore, Ainsworth noted, the child welfare and family court systems often operate separately. If teachers, doctors, neighbors or even bystanders notice child abuse, they can call child protective services (known as CPS in many states), which will sometimes place a child in foster care pending an investigation. But abused parents are left to navigate safety on their own. “Child protective services will tell [an abused] parent to get a protection order, but not offer resources or help,” Ainsworth noted. In addition, family court judges don’t necessarily take child welfare complaints into consideration when adjudicating custody. “There’s an enormous lack of communication between these two systems,” she said.

In other cases, an abusive ex-partner may use child welfare services against his or her ex. Ainsworth recalled one client whose ex stalked her and reported her every move to CPS. As a result, the children were removed to foster care. As her attorney, Ainsworth was able to intervene and her children were returned after two weeks. Without an attorney who understood the contours of domestic violence, in the best-case scenario, the mother might have been assigned a caseworker who recognized that the case was bogus and returned the children to her custody. But that would have taken longer than two weeks. In the worst case, their separation might have continued for many more months.

Abusers also use court appearances as opportunities to stalk and maintain contact with their ex-partners. Ainsworth recounted one client who was 17 years old and aging out of foster care when she met the man who was to become her children’s father. Although he was being investigated for child sexual abuse, he continually filed motions in family court, which required her to appear numerous times. Although she eventually won her custody suit, Ainsworth pointed out that, for one year, court proceedings “enabled him to get in touch with her, continue his abuse of her, continue his abuse of the kid.”

For abuse survivors who are immigrants, disbelief about abuse can be magnified by xenophobia and racism. “Abusers will go to court and say, ‘She’s just making this up to get immigration status,'” she stated. In addition, immigrants for whom English is a second language have a harder time explaining their history. She notes that over 60 languages are spoken in Seattle’s Kings County, where Legal Voice is based. Locally, most people now have court-certified interpreters available to them, but abuse survivors in other areas still do not.

“The Victim Is Further Victimized by the System”

Although she lives in a large city with a sizeable Chinese population, Angie still encountered numerous language barriers in court. Angie and her now ex-husband are both from China. She spoke little English when she moved to the United States. Shortly after their daughter was born, her husband became verbally and emotionally abusive. He demanded that she keep the baby from crying and that she obey him at all times. When he was unhappy, he threw dishes, food and other items around their apartment. One day he told her, “If you don’t listen to me, I will strangle you.” Then he wrapped his hands around her neck and choked her. He threatened to kill her, their daughter and Angie’s parents, who were visiting from China, if she went to the police.

“We lived in a lot of fear,” Angie told Truthout. “We were really, really scared.” Two days later, her parents left and Angie went to the police precinct. Some of the officers spoke Cantonese and were able to understand her. They issued a warrant for her husband and gave Angie a one-week restraining order. After her husband’s arrest, Angie stayed with a friend, then went to a domestic violence shelter where workers spoke Cantonese. The shelter referred her to an attorney, who helped her obtain a two-year restraining order.

Angie filed for divorce. In family court, the language barrier crashed down upon her. For Angie, having the domestic violence taken seriously wasn’t the problem – the court ordered that her ex have no direct contact with her and that his initial visits be supervised. But because she was working and her ex was not, the court also ordered her to pay alimony. Her attorney, who spoke neither Mandarin nor Cantonese, did not explain what was happening.

“It’s like I’m in a fog,” she recalled. “I have no idea what’s said. I just know I have to go to court again and, because I’m working, I have to pay spousal support [alimony].” Unable to make herself understood, Angie broke down into tears at every court appearance.

Two years later, Angie found another attorney, one who spoke Cantonese. Her new attorney explained what was happening and had the alimony stopped. “Family court is really, really not helpful,” Angie reflected. “The victim is further victimized by the system.”

“That’s Not Abuse”

Maria’s story complicates prevailing ideas of abuse and domestic violence. Both she and her ex-spouse are women of color. Neither is larger than the other.

The pair met, fell in love and moved in together. “The first couple of years were pretty good,” Maria told Truthout. Then Maria needed to take care of her sick father. In response, her partner broke a piece of furniture. Shocked, Maria nonetheless rationalized her partner’s actions, telling herself, “Everyone has a bad day.”

Those bad days became more frequent, especially after their children were born. Her partner often screamed at her, frightening the children. Once she tried to punch Maria, missed and punched a hole in the wall, an action that the court custody evaluator later classified as property damage. Another time, she smashed a door while Maria and their children huddled in a corner, terrified. Most of her violence, however, left no visible signs. Once, Maria recalled, her ex pinned their son, then a toddler, to the floor. When Maria objected, her ex showed her that, while she had encircled his wrists with her fingers, she was not squeezing them. “I’m not leaving bruises,” her ex told her. “I’m trying to get him to mind me.”

Finally, Maria had enough. She called the police, filed for divorce and sought an order of protection. Her claims of abuse were frequently met with disbelief. “They look at two women and can’t imagine this is happening,” she said. Maria recalled the judge stating, “I know abuse. That’s not abuse because it’s not frequent enough.”

Like Kate’s ex-husband, Maria’s ex-spouse uses their joint custody arrangement to continue exerting control. During one drop-off, Maria remembered that her ex began yelling at her. “I pulled out my phone to film her because she was getting violent,” Maria recalled. Her ex hit her, knocking the phone from Maria’s hand. Although they were in a public area with 20 to 25 people around them, no one intervened. After her ex had driven away, Maria approached a nearby security guard who told her that he wasn’t sure if he had seen anything other than a “dust-up.”

Maria filed a police report. As a result, the district attorney filed criminal charges against her ex and a judge issued Maria an emergency order of protection. The order also gave Maria custody of the children. Her ex was arrested and pled guilty to vandalism with a domestic violence attachment. Maria requested a custody evaluation. The evaluator assigned by the court dismissed her claims of domestic violence. When confronted with physical proof of her ex’s violence, he reported it as property damage. Joint custody was reinstated.

The order of protection stipulates that Maria’s ex stay 150 yards away from her, but contains an exception for “peaceful exchange of the children,” an exception that Maria’s ex continues to use to exert control over Maria. Her ex continues to come to the children’s school when she knows Maria will be there, ostensibly to return a child’s jacket or drop something off for the kids.

“You’d like to think that no one supports an abuser,” Maria reflected. But she has since learned differently. Maria noted that their gender also makes it harder for courts and others to believe abuse has occurred. “They can’t conceptualize that it’s two women,” she said. “She’s not that big, so they think, ‘How can she possibly be violent?'”

The experiences of Kate, Angie and Maria demonstrate the continued violence and fear facing domestic violence survivors even after they end abusive relationships. Abusive ex-partners frequently continue their harassment and abuse through family court and child custody proceedings. They may use the exchange of children to continue their violence and/or utilize court proceedings to maintain contact with and further punish their ex-partners. When challenged about their history of violence and abuse, some may accuse their ex-victims of parental alienation and attempts to cut them off from their children, accusations that courts seem to largely accept.

But Maria emphasizes that she is not trying to cut her ex off from their children even though her ex continually uses the children’s exchange to intimidate and abuse her. “I want my kids to have a relationship with her,” Maria said. “But I want it to be a peaceful one that she doesn’t use as a weapon. I want her to stop being abusive to me and the children. I want her to stop abusing me. I want to be safe. And I want my children to be safe.”

Note: Some names in this article have been changed due to concerns about reprisal.

Thanks to Stella Ly for helping to translate the interview with Angie.

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