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For Abuse Survivors, Custody Remains a Means by Which Their Abusers Can Retain Control

Despite growing evidence that abusers often use custody battles to retain control over their former spouses, Congress is still punting on basic protections for survivors.

After 15 years of estrangement following the birth of her son, Paulette found her ex, Steve, creeping back into her life. Steve used kind gestures: buying her flowers, cooking for her and her son, Luke, and fixing up her kitchen and patio. Eventually, Steve succeeded in getting Paulette to let her guard down and to fall in love with him. Months later, in August of 2015, Paulette and Steve were married. But Paulette quickly learned that Steve wasn't all romance—in fact, he was controlling, erratic, and violent.

That October, Luke came to his mom's defense after Steve yelled at her and told his dad to get off the property, according to police records. Suddenly, Steve attacked Luke and choked him in their front yard. Paulette called the police immediately and filed a report. Steve was removed from their home that evening by police officers. From there, Paulette and Luke obtained an emergency protective order. (All names have been altered in this story in order to protect the privacy of the victims.) While going through the divorce in 2016, Paulette received an unexpected phone call from two women—both were in the midst of custody battles with Steve. Because of his violent history, the women didn't feel like Steve should have access to their children. Paulette knew that the courts didn't work together to corroborate past histories or provide legal information to survivors who have been abused by the same person. Instead, she coordinated with the women to ensure that their all of their children were kept safe.

"I grew my bond with the ladies so tight that I feel like if he takes them to court, he's taking me to court," Paulette says. "We all feel safer knowing that we're all together and that we know the same abuses, his background, and how he uses the system to victimize us."

While Paulette never had to legally fight Steve for custodial rights of Luke, the other women Steve abused did—and stories like theirs are not rare. Abusers like Steve try to regain control by suing for custodial rights, a common occurrence which Jennifer Leeann Hardesty, a professor at University of Illinois and domestic violence expert, says can lead to "coercive control." Coercive control is not just physical violence; it includes harmful tactics like stalking and mental, emotional, financial, and legal abuse, which can have long-lasting effects on survivors and their children. Oftentimes, abusers will use their custodial rights to harass or control the non-offending parent by attacking their parental capabilities or by hurting or manipulating the child (i.e. by telling them that their mother is a bad person, or threatening to kill their mother or stepparents).

The American Psychological Association found that "most people, including the battered woman herself, believe that, when a woman leaves a violent man, she will remain the primary caretaker of their children." But, as the APA report goes on to conclude, family court may not consider the history of abuse relevant when awarding custody. It's common practice for family courts to preach that both parents should be in the picture for the "best interest of the child." In fact, a 2012 report by the American Judges Association states that, "batterers have been able to convince authorities that the victim is unfit or undeserving of sole custody in approximately 70% of challenged cases."

Research shows men who are abusive to their partners also have parenting styles that can negatively affect their children, but Hardesty says family courts tend to downplay this fact; in some cases, courts favor the abusive father because he's making an effort to be a part of the child's life, according to Hardesty.

In 2016, Representative Ted Poe (R-Texas) introduced a congressional resolution that could prevent abusers from having custodial rights to survivors and their children, which would limit or eliminate the coercive control. The resolution would mandate for family courts to investigate and resolve all claims of abuse independently before looking at any other factors in deciding custody or visitation. After almost two years, the resolution is still pending in the House Judiciary Committee. In an email to Pacific Standard, Poe writes that he hopes for the resolution to pass before the end of the 115th session, which concludes on January 9th, 2019. As a member of the House Judiciary Committee, Poe says he's also encouraging other members to bring the bill up for a vote.

The resolution is currently co-sponsored by 34 Democratic and Republican representatives, and has garnered support from numerous anti domestic violence organizations including National Coalition Against Domestic Violence, National Network to End Domestic Violence, National Domestic Violence Hotline, and Mothers of Lost Children.

"Oftentimes, in cases involving children, some courts overlook signs of abuse and rely on unscientific factors to make decisions that impact the child's life," Poe writes.

If passed, Poe's resolution could change this pattern in the court system, but in the meantime, training must be implemented and taken and survivors' accounts of abuse must be taken seriously. To keep survivors and children safe, attorneys, custody evaluators, and judges must undergo extensive training on the dynamics and effects of domestic violence and coercive control. In 2016, the Association of Family and Conciliation Courts published a model guideline for domestic violence cases, which consists of protocols on how custody evaluators should work with survivors and children. The AFCC's model guideline recommends for all custody evaluators—court-appointed mental-health experts—to investigate indications of intimate partner violence. If abuse is found, evaluators might ask the courts to limit the abuser's physical access to children and establish supervised visitations. Most significantly, the guideline suggests for any evaluators who aren't familiar with domestic violence to seek necessary training, supervision, and/or professional consultation.

Oftentimes, custody evaluators can make dangerous, or as Poe mentioned, "unscientific" recommendations for custody matters including residential custody, visitation, and a parenting plan. This typically happens because some court professionals might have little to no domestic violence training. Research shows that custody evaluators and judges expect mothers to look passive and depressed rather than angry or resistant if domestic violence is present. Even if the victim is depressed because of post-traumatic stress disorder (PTSD), that's enough ground to claim that she's not a mentally stable parent.

If a survivor feels like her child is in danger with her abuser, she might take precautions such as refusing to disclose her address or resisting unsupervised visitations. Psychological custody evaluators, in turn, might minimize the violence against the mother or accuse her of alienating the children from their father.

It's also common for some professionals to assume that accusations of abuse that arise during divorce or custody disputes are likely to be false, even though research doesn't back up that misconception. Currently, many survivors are legally mandated to either share custody or give their abusers access to their children via unsupervised visitations, which can heighten PTSD. In some cases, when family courts ignore survivors' pleas or make decisions based on misconceptions about domestic violence, the results can be fatal.

"Anyone who is [coercively] controlling is a ticking time bomb," Paulette says. "It's only a matter of time before they hurt someone—themselves or others."