Why Are Abusers Getting Their Kids in a Split?

At DomesticShelters.org, we hear from a lot of survivors of domestic abuse who are also parents. Angry, scared and confused parents who say courts are awarding full or partial custody of their children to the abusive other parent.

In fact, there’s a yearly conference that deals just with mothers who are trying desperately to regain custody of their children from their abusers.

It’s a devastating reality for too many survivors out there, one that the Justice Department wants to resolve just as much as survivors do—they just need to know what’s going on.

That’s why, in 2013, the Department of Justice’s Office on Violence Against Women, in partnership with the National Council of Juvenile and Family Court Judges, funded a two-year initiative called the Family Court Enhancement Project (FCEP), selecting four court systems across the country to review how custody related issues are dealt with when domestic violence is present, and how things can be done better.

The four courts selected were the Circuit Court of Cook County in Chicago, Ill.; Family Court of the State of Delaware; Hennepin County Family Justice Center in Minneapolis, Minn.; and Multnomah County Family Court in Portland, Ore.

The FCEP sites were recently funded for an additional year, to continue implementing new procedures in family courts through 2017.

On the Front Lines

Judge Anne Hirsch, who has served as a trial judge with the Thurston County Superior Court in Olympia, Wash., for the last decade, is one of the mentor judges working with the FCEP in Cook County. She’s also a frequent facilitator for the National Council of Juvenile and Family Court Judges. What the problem boils down to, from her perspective, is a lack of resources and education. Many who work in the court system aren’t adequately trained in domestic violence, and survivors fighting to retain or regain custody of their children aren’t equipped to navigate complicated court systems and procedures.

With a lack of context about how domestic violence may impact custody hearings, judges may award custody to a parent that they have no reason to believe is controlling, manipulating or intimidating the other parent behind the scenes.

“Any judge I talk to wants to make the right decision,” says Hirsch. “It’s difficult to do that when we don’t get the right information or all the information, or the systems in place make it difficult to get that information.

She says, often times, both survivors and abusers will minimize the abuse.

“It’s got to be frightening for someone to come to court and tell a perfect stranger that your partner’s been abusing you and your children. You have been living [with an abusive partner], you have decided that you cannot stay, but you’re terrified of losing your kids. You come to court for help but you are scared and don’t understand the process. So one of the very early things we’re working on is how to improve the process for how people come in and share their story.”

That could mean simple things like, inside the courtroom, the abuser and survivor don’t have to sit together or stand up together at the lectern. It could mean improving security measures so the survivor feels safer, providing private places for people to fill out paperwork, making that paperwork understandable and providing sufficient staff to help parties, explains Hirsch.

Some of these changes are being rolled out already, like implementing an “Expediter” position in Cook County’s Domestic Violence Division.

“People walk in the door to the courthouse and they don’t know where to go. Cook County created the Expediter position, to whom judicial officers can refer survivors who need assistance exploring what kind of parenting plans can be pursued safely. The job is crafted so that a parent can get help understanding what information a judicial officer needs in order to make a good, and safe, decision.”

On the Issue of Co-Parenting

Many advocates warn that that co-parenting with one’s abuser is not a viable option in most cases. Yet historically, most judges default to ruling in favor of fifty-fifty custody, even when domestic abuse is present. “They are usually compelled by evidence that says this arrangement, in divorces, is better for the children, even though the research was looking at families where there was no violence, and [because of] a sense that parents are entitled to parent their children, regardless of the risks they pose to the children's non-abusive parent or the trauma they created in the past,” says Eryn Jane Branch, program director with the National Council of Juvenile and Family Court Judges, who oversees the FCEP.

Of that research, Branch says, “I am gravely concerned about that research being misunderstood and misapplied.”

Co-parenting decisions are one area the FCEP is concerned with, says Branch, and which will hopefully be improved in the future with an increase in awareness and information sharing.

“Judicial officers need a full and complete sense of what the family has experienced and what the children need. And survivors need a full and complete sense of what the family court can and cannot provide for them, and how the system works, before they decide how and whether to seek help there.”

Spreading the Word

Before any court involved in the FCEP decided on changes they wanted to make, Hirsch says they had community-wide meetings that included court staff, judges, legal aid attorneys, victim advocates and other community partners to discuss the current practices and decide how best to make system improvements. “Even after decisions were made in each community, the discussions continued so that improvements were agreed upon and effective,” Hirsch says.

A goal of the FCEP is to share these lessons and best practices with courts and communities across the country. To help accomplish that, a website of best practices to roll out throughout the country is being created, and will go live sometime in 2017. “Lessons learned and best practices will be designed to be adjusted and adapted to whatever county you work within,” says Hirsch.

Branch says she believes many court systems nationwide will adopt elements of the project’s work quickly.

“More substantial efforts to replicate the project and do system-wide reflection and improvement is a large undertaking, but we're hopeful that other courts will be interested … [in having] an equitable, safe, and healing response to victims of domestic violence and their children.”

What Else Needs to Change

Hirsch says up to half of all courts’ workloads involve family law cases, but with most courts facing significant funding challenges, issues surrounding custody cases and domestic violence aren’t getting enough attention. That’s where courts themselves need to be more proactive.

“Communities and court systems need to prioritize resources for people going through custody cases. Courts can always improve, at little or no cost, how they collaborate with system partners—advocates, guardians ad litem, attorneys, treatment providers and others. When you’re working on an issue like domestic violence, history shows that community collaboration is the way improvements are made. It’s important that the courts not be aligned with one side or the other, but it’s important everyone come to the table to talk.”