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Bar News - September 21, 2007


Domestic Violence: Ten Myths about Custody and Domestic Violence and How to Counter Them

 

Attorneys who represent victims of domestic violence in custody matters often encounter the following false claims. To assist with overcoming these myths, the ABA Commission on Domestic Violence provides these facts and statistics for use in litigation.

 

Myth 1: Domestic violence is rare among custody litigants.

 

  • Studies show that 25-50 percent of disputed custody cases involve domestic violence.

S.L Keilitz, National Center for State Courts, Domestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers (1997); J.R. Johnston, High Conflict Divorce, 4 Future of Children 165 (1994)

 

Myth 2: Any ill effects of domestic violence on children are minimal and short-term.

 

  • “Children who are exposed to domestic violence may show comparable levels of emotional and behavioral problems to children who were the direct victims of physical or sexual abuse.”

            Jaffe, Wolfe, & Wilson, Children of Battered Women (1990)

  • Adverse effects to children who witness DV are well-documented, including aggressive behavior, depression, and/or cognitive deficiencies.

Morrill, Dai, Dunn, Sung, & Smith, Child Custody and Visitation Decisions When the Father Has Perpetrated Domestic Violence Against the Mother, 11(8) Violence Against Women 1076-1107 (2005); Jeffrey l.  Edleson, Problems Associated with Children’s Witnessing of Domestic Violence, (1999)

  • A continuing study by the CDC has shown a significant relationship between exposure to “adverse childhood experiences” (including witnessing domestic violence) and development of adult health problems, including pulmonary disease, heart disease, hepatitis, fractures, obesity, and diabetes (not to mentions IV drug use, alcoholism, sexually transmitted diseases and depression).www.acestudy.org, www.cdc.gov/od/oc/media/pressrel/r980514.htm

 

Myth 3: Mothers frequently invent allegations of sexual abuse to win custody.

 

  • Child sexual abuse allegations in custody cases are rare (about 6 percent), and the majority of allegations are substantiated (2/3).

Thoennes & Tjaden, The Extent, Nature, and Validity Of Sexual Abuse Allegations in Custody And Visitation Disputes, 14(2) Child Sexual Abuse & Neglect 151-63 (1990)

  • False allegations are no more common in divorce or custody disputes than at any other time.

Brown, Frederico, Hewitt & Sheehan, Revealing the Existence of Child Abuse in the Context of Marital Breakdown and Custody and Access Disputes, 24(6) Child Abuse and Neglect 849-241 (2000)

 

Myth 4: Domestic violence has nothing to do with child abuse.

 

  • A wide array of studies reveal a significant overlap between domestic violence         and child abuse, with most finding that both forms of abuse occur in 30-60 percent of violent families.

Appel & Holden, The Co-Occurance of Spouse and Physical Child Abuse: A Review and Appraisal, 12(4) Journal of Family Psychology 578-599 (1998)

  • Other studies have shown intimate partner violence to be a strong predicator of child abuse, increasing the risk from 5 percent after one act of to 100 percent after 50 acts.

S.M. Ross, Risk of Physical Abuse to Children of Spouse Abusing Parents, 20(7) Child Abuse and Neglect 589-98 (1996)

           

Myth 5: Abusive fathers don’t get custody.

 

  • Abusive parents are more likely to seek sole custody than non-violent ones…

            American Psychological Association, Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family, (1996)

  • …and they are successful about 70 percent of the time.

American Judges Foundation, Domestic Violence and the Court house: Understanding the Problem…Knowing the Victim

  • Allegations of domestic violence have no demonstrated effect on the rate at which fathers are awarded custody of their children, nor do such allegations affect the rate at which fathers are ordered into supervised visitation. (i.e. abusers win unsupervised custody and visitation at the same rate as non-abusers)

Kernic, Monary-Ernsdorff, Koepsell, & Holt, Children in the Crossfire: Child Custory Determinations Among Couples with a History of Domestic Violence 11(8) Violence Against Women, 991-1021 (2005)

 

Myth 6: Fit mothers don’t lose custody.

 

  • Mothers who are victims of domestic violence are often depressed and suffering from post-traumatic stress disorder, and as a result, can present poorly in court and to best-interest attorneys and/or court evaluators.

J.M. Golding, Intimate Partner Violence as a Risk Factor for Mental Disorders: A Meta – Analysis, 14 Journal of Family Violence 99-132 (1999); Kernic, Monary-Ernsdorff, Koepsell & Holt, Children in the Crossfire: Child Custody Determinations Among Couples with a History of Intimate Partner Violence 11(8) Violence Against Women 991-1021 (2005)


Myth 7: Parental Alienation Syndrome is a scientifically sound phenomenon.

 

  • The American Psychological Association has noted the lack of data to support so-called “parental alienation syndrome,” and raised concern about the term’s use.

American Psychological Association, Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family, (1996)

 

Myth 8: Children are in less danger from a batterer/parent once the parents separate.

 

  • Many batterers’ motivation to intimidate and control their victim through the children increases after separation, due to the loss of other methods of exerting              control.

            Lundy Bancroft & Jay Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics (2002); Langford, Isaac & Kabat, Homicides Related to Intimate Partner Violence in Massachusetts 1991-1995, Peace at Home (1999)

 

Myth 9: Parents who batter are mentally ill, OR Parents with no evidence of mental illness cannot be batterers.

 

  • Mental illness is found only in a minority of batterers.

            Gondolf, MCMI-III Results for Batterer Program Participants in Four Cities: Less “Pathological” Than Expected, 14(1) Journal of Family Violence 1-17 (1999); Gelles R. & Straus M, Intimate Violence (1988) (reporting that mental illness accounts for only 10 percent of abusive incidents.

  • Psychological testing is not a predicator of parenting capacity.

Brodzinsky, On the use and Misuse of Psychological Testing in Child Custody Evaluations, 24(2) Professional Psychology: Research and Practice 213-219 (1994)

  • Mental health testing cannot distinguish a batterer from a non-batterer

O’Leary, Through a Psychological Lens: Personality Traits, Personality Disorders, and Levels of Violence, in Current Controversies on Family Violence 7-30 (Gelles & Loseke, eds., 1993)

 

Myth 10: If a child demonstrates no fear or aversion to a parent, then there is no reason not to award unsupervised contact or custody.

 

  • Children can experience “traumatic bonding” with a parent who abuses the child or their other parent, forming unusually strong but unhealthy ties to a batterer as a survival technique (often referred to as “Stockholm Syndrome”)

Lundy Bancroft & Jay Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics, 39-40 (2002); Herman, Trauma and Recovery (1992)

 

Reprinted with permission from the American Bar Association.

 

                       

 

 

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