By: Julie Kunce Field
© 2000

UNDERSTANDING DOMESTIC ABUSE IN GENERAL

Domestic abuse is common. Domestic abuse can include emotional and

psychological abuse as well as physical assaults. Children are harmed by

domestic abuse, even if they are not the direct victims of the physical

violence. Because domestic abuse is so prevalent, and its effects are so

far-reaching, court personnel must educate themselves to understand domestic

violence and determine strategies for handling cases where it is present.

Even if domestic violence is present but does not seem to have a direct

impact on the case at hand, one should be aware of the power and control

dynamics of domestic abuse in order to provide effective intervention in

child custody and parenting time cases where there is domestic violence.

 

Prevalence

Statistics on domestic abuse demonstrate that courts will regularly

encounter cases where there is domestic abuse:

 

• There are five million reported incidents of domestic abuse every year

• Women are about ten times more likely than men to experience violence

committed by an intimate

• Approximately 50 percent of homeless women and children are on the

streets because of violence in their home

• Approximately 3.3 million children witness their parents’ interpersonal

violence each year.

• More than 50 percent of abusers will be abusive of their partners in a

subsequent relationship

• Nearly 100 percent of children in violent homes hear or see the abuse.

• Fifty-nine percent of battered women report battering during their first

pregnancy, 63 percent during the second, and 55 percent during the third

pregnancy.

• Fifty to 70 percent of men who abuse their female partners also abuse

children in their home. In homes with four or more children, the figure

leaps to over 90 percent.

• More women are treated in emergency rooms for battering injuries than

for mugging, rapes by strangers, and traffic accidents combined.

• Up to 75 percent of battered victims have left or are trying to leave

men who will not let them go.

• In 1992, 1,414 women were known to have been killed by their husband,

ex-husband or boyfriend.

 

Power and Control Dynamics

Domestic violence is a pattern of assaultive and coercive behaviors, often

including physical, sexual, and psychological attacks, as well as economic

coercion, that adults and adolescents use against their intimate partners.

The key factor characterizing domestic abuse is one partner’s need to

control the other. The “Duluth Model” has developed a graph to depict the

dynamic and characteristics of domestic abuse. A copy of the Power and

Control Wheel is attached as an appendix. Custody and parenting time

battles, or litigation over financial issues can be a means of perpetuating

the abuser’s control which may manifest itself in the courtroom. Emotional

abuse is something court personnel should screen for, along with physical

abuse, in order to understand the full range of abuse in a given case.

Some experts have described domestic violence as similar to a hostage

situation, where the “Stockholm Syndrome” manifests itself. The hostage is

isolated by the terrorist, who can induce debility and exhaustion, and who

uses threats, degradation, enforcement of trivial demands and the

demonstration of omnipotence to assert his control. The hostage becomes

bonded with her captor, who has absolute power over his hostage, yet

indulges her occasionally to keep her hopes up. Court proceedings could

serve as a forum to perpetuate this form of domestic hostage-keeping, and

court personnel must develop insights to prevent from being used as a means

to continue such control. In addition, court personnel must be aware of the

very real danger faced by victims, particularly at the time of separation.

 

Lethality risks increase when the parties separate, and the court should be

aware of these risks in order to try to identify cases where lethality may

be indicated. The Lethality Factors in the appendix lists certain

characteristics which have been identified as increasing the risk of death.

Courts should understand that the conduct of domestic violence victims may

sometimes seem “counterintuitive” -- e.g., she may not leave the situation,

not because she doesn’t want to, but because she is afraid, doesn’t have

resources, fears that he will become lethal if she leaves, or for any number

of other reasons. When her conduct is viewed in terms of the actions which

she has taken in order to keep herself or her children safe, it can then be

understood to be completely logical and sensible. Understanding domestic

violence victims’ ability to have what are in fact logical responses to

situations which are, by batterers’ designs, illogical and “crazy-making,”

can help decsionmakers avoid victim-blaming and can lead to orders where the

goal of safety can be met.

 

Myths Which May Affect Judicial Decisions in Domestic Violence Cases

Court personnel must avoid accepting stereotypes about battered women and

their abusers. Pervasive myths include:

 

1. Middle and upper class women are not battered;

2. Battering occurs largely among racial minorities;

3. Women who work in the paid labor force are not battered;

4. Affluent respectable men, especially professionals, do not batter;

5. Women want to be abused by their partners;

6. If they wanted to, battered women could easily escape the violence;

7. Abuse of women, though not the ideal, is inevitable and acceptable in

our society, or a certain level of violence is part of many relationships;

8. Abuse in the past is irrelevant to making custody, parenting time or

financial

arrangements at the present time;

9. Abuse of a mother does not affect her children unless they too are

directly treated with violence;

10. Violence is a loss of control, and is not a choice made by the

assailant;

11. Batterers are brutes who have no charm or redeeming qualities; and

12. Women are manipulative and make false allegations of sexual abuse, or

engage in “alienating” behaviors.

13. Joint custody is always preferable for children.

 

SCREENING FOR DOMESTIC ABUSE

 

Considerations

Given the prevalence and high risk of harm in cases where there is domestic

abuse, it is essential that court personnel screen for domestic violence. As

with any case, it is essential that the investigator develop a rapport with

the parties, and understand that revelations about painful issues may not

occur fully or immediately. As with any custody case, compassion, patience,

empathy and active listening skills are critical, and will be essential to

obtaining necessary information in these cases. An awareness that batterers

can appear charming and calm, while the victim may be fearful and agitated,

can help court personnel as they assess the domestic violence in the case.

Batterers are, by their nature, manipulators. The cautious court

investigator or judge will be able to assess the truth by listening

carefully to what is said, and by looking for signs of power and control in

the parties’ statements.

 

The screening tools outlined below give some examples of questions which

the investigator can adapt to suit her or his own style and practices. Some

keys to remember in gathering this information are:

 

• The information related to domestic violence should be asked about in

every case where intimate partners or family members are involved;

• Both parties may minimize the abuse or not identify it as “domestic

violence”;

• The more specific the questions, the more likely it is that the

information elicited will be accurate. Asking “Has there been domestic

violence in your relationship?” will not provide accurate or enough

information to determine whether domestic violence has in fact occurred, or

whether precautions are necessary to protect the parties and the court

personnel from harm;

• The investigator should not be judgmental when asking the screening

questions;

• The questions should be phrased in the investigator’s own words. If a

written questionnaire is used, it should be supplemented with questions in a

face-to-face interview; and

• The questions should be introduced with a non-threatening opening, such as

“Because abuse and violence are so common in intimate relationships, I ask

about it routinely.”

 

Screening Questions To Elicit Prior Court Involvement

 

One of the most apparent means of discovering information about domestic

violence history in a relationship is to determine whether there has been

prior court involvement by either party. Court personnel should be

cautioned, however, that the lack of prior court or police involvement does

not necessarily mean that there is no domestic violence between the parties,

or that reports of current domestic violence are not truthful. Court

personnel should also be aware that victims may be arrested and charged with

domestic violence when they were defending themselves against the primary

aggressor. Therefore any screening must be mindful of these issues, and

with awareness of the myths about domestic violence victims and

perpetrators. Some questions which can help determine whether there has

been prior court involvement might include:

 

• Are there now or have there ever been any criminal charges brought

against either party? If so, in what court? What was the outcome?

• Has any other court ever issued an order involving either party? If so,

what court? What did the order provide?

• Has either party ever been arrested? If so, when? Where?

• Is there a personal protection order issued involving either party? If

so, what court issued it?

• Has any other court ever issued an order for custody, support or

parenting time regarding any of the parties’ children?

 

AMA Screening Guidelines

 

The American Medical Association has developed diagnostic and treatment

guidelines for cases of domestic abuse. Those guidelines suggest that

doctors ask their patients questions included in the following list. Those

questions are easily adapted to the court investigation setting:

 

• Are you in a relationship in which you have been physically hurt or

threatened by your partner?

• Are you in a relationship in which you felt you were treated badly? In

what ways?

• Has your partner ever destroyed things that you cared about?

• Has your partner ever threatened or abused your children?

• Has your partner ever forced you to have sex when you didn’t want to?

Does he ever force you to engage in sex that makes you feel uncomfortable?

• We all fight at home. What happens when you and your partner fight or

disagree?

• Do you ever feel afraid of your partner?

• Has your partner ever prevented you from leaving the house, seeing

friends

getting a job, or continuing your education?

• Does your partner use drugs/alcohol? How does he act when he is drinking

or on drugs? Is he ever physically or verbally abusive?

• Do you have guns in your house? Has your partner ever threatened to use

them when he was angry?

 

ABA Screening Suggestions

 

The ABA Commission on Domestic Violence has developed a Lawyer’s Handbook,

which gives practical, useful information about domestic violence. Titled

The Impact of Domestic Violence on Your Legal Practice, it is available by

calling the ABA Service Center at 312-988- 5522. Many of the ABA' s

proposed questions are similar to the AMA’s. Some additional screening

questions outlined in the ABA's publication which may be adaptable to

investigations include:

 

• Do you ever do anything differently because of the consequences of a

fight?

• Has your partner ever put his hands on you against your will, or forced

you to do something you didn’t want to do?

• Does your partner criticize you or your children often?

• Has your partner ever tried to keep you from getting medical help? Kept

you from sleeping at night?

• Has your partner ever hurt your pets or destroyed your things? Does your

partner throw or break things during arguments?

• Is it hard for you to have relationships with friends or relatives

because your partner disapproves of, argues with, or criticizes them?

• Does your partner make it hard for you to keep a job or go to school?

• Does your partner withhold money from you? Do you know what your

family’s assets are? If you wanted to find out, or to find any important

documents like birth certificates, passports, bank books, house deed, would

your partner make it difficult for you to do so?

 

Other Screening Aids

 

Some substitute or additional questions to those in the AMA Guidelines were

developed by Susan Schechter, as part of the Guidelines for Mental Health

Practitioners in Domestic Violence Cases. Those questions may be useful for

adaptation by court personnel:

• Is anyone in your family hitting you?

• Does your partner ever threaten you?

• What happens when your partner does not get his way?

• Does your partner threaten to hurt you when you disagree with him?

• Do you have to have intercourse after a fight to “make up?’

• Does your partner watch your every move? Call you 10 times a day? Accuse

you of having affairs with everyone?

 

Larry Rute from Kansas Legal Services proposes the following screening

questions:

 

• Are you fearful of the other person for any reason?

• Are you afraid you will be harmed?

• Have you ever been threatened?

• Have you ever been harmed?

• Have you had to call the police for protection?

• Have you ever stayed in a shelter?

• Are you afraid to answer these questions?

• Are you afraid to be in the same room with the other party?

• How can I tell when he/she is angry?

• How can I tell if you are angry, frightened or upset?

• Can you ask for a break if you are feeling uncomfortable?

To screen for violence from a different perspective, some sample questions

developed by the Alternatives for Domestic Aggression program in Ann Arbor,

Michigan include:

• Was there violence in your family (of origin)?

• During conflict do you often threaten someone, break things, punch

walls, slam doors, ignore her, or leave?

• Do you have mood swings, where one moment you feel loving and

affectionate, and the next moment angry and threatening?

• Have you ever shoved, grabbed, hit, slapped, or choked your partner, or

any past partners?

• Do you find it difficult to talk to your partner about your feelings,

your hopes, your fears?

• Do you tend to blame others for your behavior, especially your partner?

• Are you a very jealous person?

• Do you try to control how your partner thinks, dresses, who she sees,

how she spends her time, how she spends her money?

• Do you try to discourage her from seeing her friends or family?

• Do you get angry or resentful when she is successful in a job or hobby?

• Do your conversations quickly escalate into threats of separation or

divorce?

• Do you ever threaten to hurt her, yourself, or others, if she talks

about leaving you?

• Do you do or say things that are designed to make her feel “crazy” or

“stupid”?

• Do you blame alcohol, drugs, stress, or other life events for your

behavior?

• Do you feel guilty after aggressive behavior and strive for your

partner’s forgiveness?

• Do you think that you could never live without her, yet other times want

her out?

• Do you use sex, money or other favors as a way to “make up” after

conflict?

• Is your partner afraid of you sometimes?

 

WHAT TO DO IF THERE IS DOMESTIC VIOLENCE BETWEEN THE PARTIES

Develop Protocols

 

According to the National Council of Juvenile and Family Court Judges,

communities which are concerned about domestic violence “are asked to

confront a new and compelling set of facts: (1) adult domestic violence and

child maltreatment often occur together and (2) new responses are required

of everyone, if violence within families is to stop.”

 

The protocols which courts and court personnel may develop will depend upon

the nature of the information sought, the circumstances of the parties, and

the individual court’s caseload and resources, among other factors. But, at

minimum, courts should develop procedures which will ensure: that the court

environment is a safe one for disclosure, that court personnel become as

educated as possible about domestic violence, and that local guidelines

address such topics as: Points in the proceedings when the parties will be

given a specific opportunity to talk about violence in their relationship,

procedures for promoting safety and confidentiality, and when and what

referrals will be made.

 

Recognize What Can and Can’t Be Solved Through Court Processes

Courts have tremendous power to stop a batterer from continuing his power

and control over the victim. The most effective interventions are those

which hold the safety of battered women and their children paramount, and

which provide for consistent, swift and sure consequences for battering

behaviors.

 

Safety Of The Children And The Battered Partner Should Always Be The

Primary Concern.

In custody and parenting time cases, child and victim safety follows when

one recognizes that battering a partner is per se bad parenting. It is not

in a child’s best interest to be ordered to live with a batterer, or to

visit a batterer without clear and effective safeguards for the child’s

safety. In addition, research shows that batterers are difficult to change

- -- many batter in subsequent relationships, so the presence of a new partner

for the batterer may not be a safety valve for the children. When making any

order in a domestic violence case, the court should actively ask itself

whether it is doing everything that it can do to keep the children, and the

non-abusive parent, safe and alive.

Ways to protect battered women and children:

1. Identify and understand domestic violence. Recognize that women and

children are most often victims, and that men rarely are victims, though

they might try to portray themselves as victims.

 

2. Believe women and children when they report abuse, while at the same

time recognizing that many victims minimize the battering which they

suffered, or that they may have good reasons for later denying that any

abuse occurred.

 

3. Don’t hold women to impossible standards of parenting, and recognize

their efforts to stay safe. Put the blame for the batterering where it

belongs -- on the perpetrator.

 

4. Draft all orders with safety as the primary consideration. “Father’s

rights” or “parents’ rights” should always be secondary to safety.

 

5. Recognize that keeping the mother safe can translate into keeping the

children safe. As one means of ensuring that the mother is safe, the court

can inquire about women's safety plans as part of its decision-making

process, order temporary custody as part of PPO’s to ensure that children

are safe, and make supervised parenting time (supervised by a non-related

third party) the first choice until the perpetrator actually demonstrates

that he is fit to have the children unsupervised.

 

6. Orders must be clear, specific, and detailed as to the definite terms

of the order, and should include built-in consequences for non-compliance.

There should be no room for ambiguity or negotiation. Orders should be

vigorously enforced and perpetrators held accountable.

 

7. Understand that the processing of a family law case where there is no

domestic violence is necessarily different than that of a case where there

is domestic violence. For example, the goals of joint decisionmaking,

getting along, compromise, meeting to work out problems, and sharing

responsibility for the failure of the marriage or subsequent problems do not

work in a case marked by the power and control dynamics of domestic

violence. Asking the parties to work out their own parenting time schedule

and details would be comparable to asking a former hostage to return to his

captors alone, without any weapons or back-up support, to negotiate the

surrender of weapons, and the release of other hostages or goods. The

hostage-takers have all the guns, and the power, and the ability to control

the outcome to their design. Similarly, the battered woman and her children

have no relative power without legislative and court assistance to design a

custody or parenting time plan that can help them stay safe.

Two pervasive myths need to be avoided -- that mothers frequently engage in

“alienating” behaviors, and that joint custody is always preferable for

children. In fact, "[r]esearch indicates that joint physical custody and

frequent child-nonresidential parent contact have adverse consequences for

children in high-conflict situations. Joint physical custody and frequent

child-nonresidential parent contact do not promote parental cooperation."

And “parental alienation syndrome” is one man’s self-published theory, of

which the American Psychological Association says: “parental alienation

syndrome is not a valid diagnosis and shouldn’t be admitted into child

custody cases.”

 

SPECIFIC CONSIDERATIONS UNDER MICHIGAN LAW

Michigan law has specific provisions directed toward safety of children and

the non-abusive parent in custody and parenting time cases. Further

discussion of each of these, and examples of specific cases and orders will

be presented at the accompanying seminar.

 

MCL 722.23, MSA 25.312(3) (1999)(“Best Interests of the Child Defined”):

Best interests of the child includes, under factor (k) “Domestic violence,

regardless of whether the violence was directed against or witnessed by the

child.” And, under factor (l): “Any other factor considered by the court to

be relevant to a particular child custody dispute.”

MCL 722.27a, MSA 25.312(7a) (1999)(“Parenting Time”):

 

“(3) A child has a right to parenting time with a parent unless it is shown

on the record by clear and convincing evidence that it would endanger the

child’s physical, mental, or emotional health.”

“(6) The court may consider the following factors when determining the

frequency, duration, and type of parenting time to be granted: ... “(c) the

reasonable likelihood of abuse or neglect of the child during parenting

time. (d) The reasonable likelihood of abuse of a parent resulting from the

exercise of parenting time....(f) Whether a parent can reasonably be

expected to exercise parenting time in accordance with the court order. (g)

Whether a parent has frequently failed to exercise reasonable parenting

time. (h) The threatened or actual detention of the child with the intent to

retain or conceal the child from the other parent or from a third person who

has legal custody. A custodial parent’s temporary residence with the child

in a domestic violence shelter shall not be construed as evidence of the

custodial parent’s intent to retain or conceal the child from the other

parent. (i) Any other relevant factors.”

 

“(8) A parenting time order may contain any reasonable terms or conditions

that facilitate the orderly and meaningful exercise of parenting time by a

parent, including 1 or more of the following: ... (f) Requirements that

parenting time occur in the presence of a third person or agency. (g)

Requirements that a party post a bond to assure compliance with a parenting

time order.”

 

For more information on how parenting time orders can be structured for

safety, refer to Field, J.K., Visits in Cases Marked by Violence: Judicial

Actions That Can Help Keep Children and Victims Safe, 35 Court Review 20

(Fall, 1998), which is attached as an appendix to this outline.

MCL 600.2950, MSA 722.27(1999)(Restraining or enjoining spouse, former

spouse, individual with child in common, individual in dating relationship,

or person residing or having resided in same household from certain

conduct):

“...an individual may petition the family division of circuit court to

enter a personal protection order to

restrain or enjoin a spouse, a former spouse, an individual with whom he or

she has had a child in common, an individual with whom he or she has or has

had a dating relationship, or an individual residing or having resided in

the same household as the petitioner from doing 1 or more of the following:

...(d) Removing minor children from the individual having legal custody of

the children, except as otherwise authorized by a custody or parenting time

order issued by a court of competent jurisdiction. (f) Interfering with

petitioner's efforts to remove petitioner's children or personal property

from premises that are solely owned or leased by the individual to be

restrained or enjoined. (h) Any other specific act or conduct that imposes

upon or interferes with personal liberty or that causes a reasonable

apprehension of violence.”

Conclusion

Under Michigan law, then, the court has authority to issue necessary orders

which can promote the goals outlined above in cases where domestic violence

has been identified. By understanding and identifying domestic violence,

and keeping safety of the non-abusive parent and the children as the

paramount concern, courts will go far in acting in the best interests of

children and families, and will be more effective in reducing violence in

the community.

APPENDICES

Power and Control Wheel, Duluth Domestic Violence Intervention Project

Lethality Factors

Field, J.K., Visits in Cases Marked by Violence: Judicial Actions That Can

Help Keep Children and Victims Safe, 35 Court Review 20 (Fall, 1998)

McDonald, M., The Myth of Epidemic False Allegations of Sexual Abuse in

Divorce Cases, 35 Court Review 12 (Spring, 1998)

ABA, The Impact of Domestic Violence on Your Legal Practice: A Lawyer’s

Handbook, Judicial Checklist (1996)

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