THIS IS what
MANDATORY SHARED Parenting does.
KILLS
Barry Goldsteins Representing the Domestic Violence Survivor
Shared Custody Issues in the Context of Domestic Violence
by Barry Goldstein NOMAS
In a Queens New York custody case, the court appointed a prominent psychologist to
evaluate a young couple. The psychologist was frequently used as an expert in the New York
courts despite a fathers’ rights bias that included a quotation in a New York Times article
supporting shared parenting. Throughout his testimony supporting the abusive father, the
evaluator could not respond to any of my questions asking for research to support any of his
claims. Finally I asked him if there was any research to support his belief that children
benefit from a 50-50 division as compared to 70-30. He cited Judith Wallerstein, but could not
cite a particular book or article. A colleague put me in touch with Ms. Wallerstein who sent me
an email for my continued cross-examination of the evaluator. She said that earlier research had
indicated shared parenting might be beneficial in cases where the parents are able to cooperate,
but more recent research has demonstrated that shared parenting is in fact harmful to children.
One of the problems in our custody courts is that this psychologist, like most experts relied on
by the courts does not have the knowledge of up-to-date research or the ability to apply it to
custody cases.
Shared custody, sometimes referred to as joint custody involves joint decision making by the
parents and sometimes also requires something close to a 50-50 division of time with each parent.
The equal time division is often important to parents wishing to avoid paying child support.
Proponents of shared parenting say it is only fair that parents have the same rights to parenting
time with their children and courts claim that they must treat each parent that comes to court
equally. This seems fair unless we understand the unstated part that parents should be treated
the same regardless of the quantity and quality of time each parent spent with the child before
the separation. Research about primary attachment is not controversial and demonstrates that a
child’s primary attachment figure is more important to the well being of a child than the other
parent. Furthermore, although research supports the belief that children benefit from having
both parents in their lives, this is not true if one of the parents is abusive. Nevertheless
many courts think it is their obligation to treat each parent the same even when one is much more
valuable to the child.
Custody When Neither Parent is Abusive
The concept of shared parenting was supported by an initial study that found a
favorable response. Courts were delighted to support shared parenting because it served as a way
to compromise a difficult issue and could remove many cases from an already crowded calendar.
Abusive fathers who had little involvement with the children during the relationship strongly
supported shared parenting as a way to avoid child support and maintain access and control over
their victims.
The initial study was based on a very limited population and most favorable circumstances that
included parents who enthusiastically supported the use of shared parenting, were able to
cooperate and lived close together. Later studies that included larger populations and more long
term effects of the arrangement demonstrated shared custody to be harmful to children, but these
studies failed to dampen the enthusiasm for shared custody in the legal system and by abusers.
The studies found that children with two homes in reality had no homes. Children forced to
bounce back and forth between their parents’ homes were denied a sense of security and
continuity. They could not spend the time with friends that they wanted and often could not
participate in a variety of activities because they had to be with the other parent when some of
the events occurred. Children were often embarrassed when articles they needed for school or
other activities were left in the wrong home. In other words, even when parents were able to
cooperate, the shared custody arrangement placed added pressure on the children and made their
lives more difficult. Their success in academic studies and social interaction was negatively
impacted by the shared custody arrangement.
Shared Custody in Domestic Violence Cases
Many of the laws and proposed legislation seeking to promote shared custody purport
to contain language to create an exception for domestic violence cases and sometimes for other
cases in which the parties are unable to cooperate. There is a good reason to treat domestic
violence cases differently as shared custody is particularly harmful to children when one of the
parents is an abuser. A parent cannot co-parent with an abuser because it is unsafe to challenge
him and compromise is impossible when there is unequal power. The fundamental problem, too often
missed by courts is that abusers are willing to see their children harmed in order to maintain
what they believe is their right to control or punish their partner. Most contested custody
cases that courts mistakenly label “high conflict” are in reality domestic violence cases in
which fathers use the common abuser tactic of seeking custody to maintain control of their
partner or punish her for leaving. Children who witness domestic violence (including non-
physical abuse) are more likely to engage in dysfunctional behavior when they are older.
Depending on their age when they witness his abuse, their stage of development is disrupted. All
batterers have been found to engage in harmful parenting practices including undermining the
relationship with the other parent, teaching bad values (sexism) and providing a bad example. In
other words, up-to-date research establishes that abusers are not appropriate candidates for
custody or shared custody.
The benefit of an exception for domestic violence is limited because of the widespread failure of
courts to recognize domestic violence in custody cases. Thirty plus years ago when domestic
violence first became a public issue there was no research available. Courts, like other bodies
developed practices and approaches to consider domestic violence without knowing what worked. At
the time domestic violence was mostly focused on physical abuse. The assumption was that mental
problems and substance abuse caused domestic violence and that women’s behavior contributed to
their partner’s abuse. Courts therefore chose to use mental health professionals as experts
although they had no training in the dynamics of domestic violence. Courts assumed that
children were not harmed by domestic violence unless they were directly assaulted and his abuse
would end once the parties separated. Up-to-date research demonstrates that all of this and many
other assumptions still relied on by many professionals in the custody court system are wrong.
There is now a specialized body of knowledge about domestic violence, but too often judges and
the professionals they rely on are overconfident in their own understanding of domestic violence
and fail to consider up-to-date research. Judge Mike Brigner wrote in his chapter for DOMESTIC
VIOLENCE, ABUSE and CHILD CUSTODY that when he trains judges they often ask him what to do about
women who are lying. When asked what they mean, they cite women who return to their abusers,
fail to pursue petitions for protective orders, don’t have police reports or hospital records and
the myth that women frequently make false allegations of abuse to gain an advantage in litigation
(in reality this occurs only one-two percent of the time). None of these behaviors indicates the
women are lying and in fact this is often the safest response they can make particularly when
still living with their abuser. Similarly inadequately trained professionals often cite the fact
that the children did not seem afraid of the alleged abuser when they observed them as proof the
allegations are false. The children understand what the “experts” don’t that the abuser is not
going to hurt them in front of others and in fact they could be punished if they demonstrated
fear in public. Many professionals in the court system believe they have the ability to
determine who is lying just from observation. In fact research shows that aside from a very few
elite CIA and FBI agents, no one has been shown to possess this skill. Accordingly these
professionals through this belief become more susceptible to abusers who are skilled
manipulators. While the unqualified professionals often discredit allegations of abuse for these
and other invalid reasons, they fail to look at the pattern of controlling and coercive behaviors
that would help them see the pattern of abusive behavior.
The result of this and many other mistakes by professionals in the custody court system is that
thousands of children are being forced to live with abusers and many protective mothers, who are
wrongly dismissed as disgruntled litigants and denied any meaningful role in their children’s
lives. Legislatures and courts should be focusing on using the available up-to-date research to
protect the safety and secure the potential of children caught up in domestic violence custody
cases. Today, shockingly, courts are getting a majority of domestic violence custody cases
wrong. This is one of the reasons we recommend that all professionals receive not just general
domestic violence training, but specific training in Recognizing Domestic Violence, Gender Bias
and The Effects of Domestic Violence on Children. Until courts have and apply this information,
our children will not be safe when courts decide their fate.
In domestic violence custody cases, the use of shared parenting does not save court time and
resources, but rather only postpones extensive litigation at great expense to the parties and
harm to the children. Abusers eventually contrive incidents as an excuse to seek sole custody or
protective mothers are forced to seek custody because the abusers are hurting the children.
Abusive parents with limited parenting skills use shared parenting to get their foot in the door
while continuing to harass and abuse their former partners. Court professionals often pressure
protective mothers to accept shared custody with their abusers and punish them for trying to
protect themselves and their children. Over forty states and many other court districts have
sponsored gender bias commissions that have found widespread gender bias. Gender bias is
particularly hard to overcome because judges and other professionals engage in gender bias
without realizing they are doing so. The studies have shown that in custody cases, mothers are
given higher standards of proof, less credibility and are blamed for their abuser’s behavior.
When mothers seek to limit contact between their children and their abuser for safety reasons and
courts routinely treat this as if she is trying to interfere with the relationship between the
children and abusive father, this is an example of blaming mothers for the father’s behavior.
Instead of courts pressuring the abuser to stop his controlling and threatening behavior,
protective mothers often face retaliation and punishment for trying to protect their children.
This is particularly common when courts fail to recognize domestic violence and then punish
mothers who continue to believe their abuse allegations. Provisions in shared custody laws that
purport to make an exception for domestic violence will continue to be ineffective as long as
there is widespread failure to recognize domestic violence and to take it seriously. Accordingly
shared custody laws are not beneficial in cases where the parties can voluntarily cooperate and
create serious danger to children in domestic violence cases.
Barry Goldstein is a nationally recognized domestic violence speaker, author and consultant. He
is co-editor with Dr. Mo Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. For more
information see Domesticviolenceabuseandchildcustody.com
