IN THE VICTIMS BEST INTEREST: IS A JOINT-CUSTODY ARRANGEMENT

APPROPRIATE WHEN INTIMATE PARTNER VIOLENCE IS A FACTOR?

S. K., Ph.D., Professor
CJS 307 Family Violence: Cross-Cultural Perspectives
I. State University
Mandy Webster
Graduate Student, Women and Gender Studies
I. State University
July 10, 2015

IN THE VICTIMS BEST INTEREST: IS A JOINT-CUSTODY ARRANGEMENT

APPROPRIATE WHEN INTIMATE PARTNER VIOLENCE IS A FACTOR?

Abstract
In this paper, I study the impact of intimate partner violence (IPV) on children and the resulting
impact on society. I provide a brief overview of the history of child custody arrangements in the
United States and examine the issue of awarding joint custody to a battering parent. I provide an
overview of the impact of IPV on children who have not been directly abused and discuss the
viability of a joint custody arrangement between parents who have a history of IPV. I also discuss
the struggles that custody evaluators face in determining what type of custody arrangement will
be appropriate in a case that includes an element of IPV. I argue that IPV is inherently child
abuse even if the batterer does not physically abuse the child directly. Finally, I address the
societal impact of failing to address this issue properly and make recommendations for
combatting IPV on a societal level.

Child custody arrangements have evolved a great deal over the past fifty years. Prior to the
1970s, a joint-custody arrangement was not an option for most families. In most cases, the
custody of the children would have been awarded to the primary caregiver, who was often the
mother. In the late 1970s, with the advent of the fathers rights movement, many states began to
enact laws allowing divorcing parents to share legal custody of their children. It wasnt long
before family courts were faced with the necessity of determining whether a joint custody
arrangement was in the best interests of children in cases that involved intimate partner violence
(IPV). As of early 2010, only twenty-two states had enacted laws dictating that legal custody
should not be awarded to the battering parent. While the other twenty-eight states and the District
of Columbia have enacted laws presuming that battering is a major factor to be considered when
determining legal custody, there is little consistency in how the courts determine what is in the
best interests of the children in these cases. (Harris, 2010).
Many states vary on their definitions of IPV. Some states, like New Hampshire, require
that the perpetrators actions fit strictly-defined criminal statutes. Others, such as Arizona, more
loosely define IPV as any act that would permit the victim to obtain an order of protection.
Additionally, some states require that the victim provide absolute proof that abuse has occurred.
Furthermore, some states will accept the existence of an order of protection as evidence of
intimate partner violence, while in others, the order of protection is not even admissible in court.
Finally, some states do not require proof that the child witnessed the violence in order to
determine that the child is adversely affected by it while others require evidence that the child
was adversely affected by the existence of IPV in the home. Unfortunately, some states are now
allowing the existence of IPV as a reason to withhold custody from the battered parent, citing her
inability to protect the children from the effects of living in a violent household as a factor when
determining who should be awarded custody of the children (Harris, 2010).
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A common misconception is that child abuse has only occurred when the abuse has left
physical evidence such as bruises or broken bones. Unfortunately, the abuse that children suffer
when a parent is abused goes farther than simply the emotional trauma of witnessing abuse. The
patterns of abusive behavior that allow a father to batter the childs mother are typically woven
into the fabric of the childs everyday life (Bancroft & Silverman, 2002). Even if the child never
witnesses a single physically violent act and is never physically abused himself, he is still at risk
for emotional and mental abuse from the battering parent. Not only does the danger to the
children not end after the mother leaves the batterer but it can also increase during and after the
separation.
Maintaining a strong relationship with the non-battering parent is essential for a childs
well-being and ability to heal from past traumas. However, ongoing exposure to the batterer
often undermines the mothers authority over and relationship with her children. No matter how
good a father the batterer may try to be, his controlling and manipulative behaviors damage the
child's relationship with the mother (Bancroft & Silverman, 2002). Additionally, children who
are obligated to have visitation with a batterer over their objections are likely to interpret the
court's actions as approving of the father's violence and disapproving of the child's wish to avoid
his abuse. They may observe that the parent with the most power wins the court conflicts,
thereby confirming their sense that the abuse of power is both justifiable and desirable (49).
Although the issue of IPV has existed since the beginning of time, the idea that it has a
negative impact on children whether or not they have personally been abused is a relatively
new concept. It is only since the late 1990s that research has begun to elucidate the impact of
IPV on children who have not been directly abused by the perpetrator (Harris, 2010). The
American court system is struggling to determine what is in the best interests of the children in
custody cases that involve an element of IPV. Many child custody evaluators are not properly

trained in recognizing the impact that an abusers daily behavior and attitudes has on the children
even when they are not victims of direct physical abuse. Despite the tendency of many courts to
insist on joint custody arrangements when both parents are interested in such an agreement,
studies have also shown that co-parenting is virtually impossible when IPV has been a factor in
the relationship. This is an issue that has a negative impact on society as a whole. It is essential
that family courts take current research into consideration when determining how best to
minimize the impact of family violence on the children in a child custody dispute.
The Impact of Intimate Partner Violence on Children
Silvern et al. (1995) and Spaccarelli et al. (1994) estimate that one in three children in the United
States are exposed to inter-parental violence during childhood (Knutson et al, 2009). The impact
of this exposure can vary depending on a variety of elements including the childs age at the time
of exposure, the frequency of violent instances, how the non-violent parent copes with the
violence, and the availability of services to help combat the issue. Exposure to IPV in infancy
and early childhood has been linked to a host of physical, emotional, and social issues including
lowered verbal abilities, cognitive impairments, problematic behaviors with peers in early and
middle childhood and physical health issues including weight, height, and nutritional status
(Schnurr & Lohman, 2013).
Child abuse via abuse of the mother often starts as early as conception. According to the
IRIS Domestic Violence Center website, As many as 324,000 women [in the United States]
each year experience intimate partner violence during their pregnancy (Domestic Violence
Statistics). IPV during pregnancy can lead to a wide range of long-term negative consequences
for the child, up to and including early birth or miscarriage of the pregnancy. The existence of
IPV during pregnancy increases the childs risk of experiencing low birth weight, difficulty
nursing, sleep issues, and ongoing developmental problems including issues with learning to

walk and talk. These children are more likely to experience emotional trauma from abuse that
occurred in-utero and will often be more difficult to comfort than other babies may be. They are
also at an increased risk of being physically and/or sexually abused at some point during their
childhood in relation to a child whose mother was not abused during pregnancy (Domestic
Violence and Pregnancy, 2015).
According to Schnurr & Lohman, toddlers are particularly at risk for developmental
impacts due to the fact that they are at an age where development occurs at a rapid pace. IPV
exposure can be detrimental to normal brain development and can lead to long-term deficits
related to a lack of emotional regulation and coping strategies (2013: 1016). Long-term
exposure to IPV may also lead to problems with developing coping strategies and regulating
emotions, in addition to issues with regulating cognitive, emotional, and behavioral systems.
Additionally, victims of IPV are often less able to provide a safe and stable home life for these
children, which results in an increased risk for long-term biopsychosocial difficulties (2013:
1016).
Children who are exposed to IPV may also be at an increased risk for a variety of
physical ailments, including many that one might not typically associate with IPV. These
children often suffer from increased rates of anxiety, depression, deficient school performance,
and poor physical health. Breiding, M. J., & Ziembroski (2011) have even found a correlation
between IPV exposure and childhood asthma. Theirs and other studies have found that while
asthma is typically associated with environmental exposures, it is also socially patterned given
its association with poverty, race, and urban residence (e95). Psychologically stressful life
events like IPV can have a negative impact on immune functioning and can permanently alter
the level at which physiological systems operate (e95). These studies have found that women
who reported being victims of IPV have increased rates of also having at least one child who

suffers from asthma. These findings may also extend to a variety of other physical ailments not
yet studied in relation to IPV.
Exposure to IPV in childhood can lead to both mental and physical health problems,
issues at school, and ongoing problems with peer relationships that often extend well into
adulthood. Because of the increased risk of physical, emotional, and sexual abuse and/or neglect
for the child living in a violent household, it is essential for family courts to factor in the
existence of intimate partner violence when making decisions regarding child custody. Not only
is exposure to IPV detrimental to the childs development and general wellbeing, but its
existence can also point to serious parenting issues on the part of the battering parent.

Is co-parenting possible when one parent is a batterer?

Dana Harrington Conner, Associate Professor of Law and Director of the Delaware Civil Law
Clinic at the Widener University School of Law has identified several factors that make coparenting between a batterer and his victim unmanageable at best (2011). She argues that a jointcustody arrangement when IPV is a factor inherently goes against the childrens best interests. A
joint-custody arrangement may only be successful when both parents are able to freely
communicate their opinions and cooperate to make decisions about their children. This type of
arrangement may only exist in a situation where the balance of power is relatively equal between
the two parties. The goal of a joint-custody arrangement is to create a situation in which both
parents have an equal chance of contributing to the decision-making process in regards to
childrearing. However, the mere existence of IPV relies on the ability of one partner to shift the
majority of the power in the relationship to himself. Such a situation eradicates the likelihood
that the powerless party will be allowed any input when making decisions for the children. This

imbalance of power ultimately leads to a sole custody arrangement in fact despite the existence
of a joint custody order in which most, if not all, childrearing decisions are made by the
battering parent. Ordering a joint-custody arrangement when IPV is a factor puts the abused
parent and the children at greater risk for future abuse. Additionally, Connor cites research that
has found that meeting the needs of the battered parent rather than the batterers is typically in
the best interests of the children (2011).
Unfortunately, many battered women choose not to request sole custody, fearing that they
could end up losing custody altogether. Friendly parent doctrine (Conner, 2011: 243) is one
standard that often places the children of a batterer at risk. This policy encourages the courts to
consider which of the two parents seems more likely to encourage a relationship between the
child and the other parent. The parent who is deemed to be more friendly in this regard will
enjoy an increased likelihood of being granted sole custody. While this line of thinking may be
useful in a child custody case that does not include an element of IPV, it can backfire on the
battered mother who chooses to seek sole custody of her children for their protection. In
requesting sole custody, she places herself at risk for being viewed as uncooperative, thus
increasing the likelihood that custody may be handed over to her abuser. The article cites this
principle as one of the leading causes that battered women are reluctant to seek sole custody in
the first place.
Unfortunately, there is little consistency in how the courts approach this issue, with some
judges placing the existence of IPV at top priority while others completely dismiss the issue as
irrelevant to the custody decision. In many cases, judges have actually (erroneously, I might
add!) determined that the existence of IPV has nothing to do with the child or the childs
relationship to his or her parents. In Conners professional opinion, because the presence of IPV

restricts the abused parents right to freely engage in joint decision-making (2011: 253),
battered mothers should almost always be awarded sole legal custody of children when the
relationship comes to an end.
Additionally, the same characteristics that drive an individual to commit IPV also
preclude that individual from making mature and responsible parenting decisions that place the
childrens needs and best interests ahead of his own. When given the power to control
childrearing decisions, the batterer is also given the power to continue to control the other parent.
The ongoing intimidation and hostility that is created by such a situation can have long-term
negative consequences for the health and wellbeing of the children. In the long run, it is in the
best interests of the children that they no longer be exposed to the battering parent once the
battered mother has gathered the resources necessary to remove them from this inherently
harmful environment. It is up to the court system to understand these issues and offer the battered
mother the necessary support to help her extract her children from the violent household while
doing as little damage to them as possible.
When the court grants an abusive parent joint legal custody, it makes the following
declaration: we trust the batterers judgment, we find his criminal behavior to be
irrelevant to the courts custody determination, we find the batterer to be an appropriate
role model for his children and we believe he is capable of cooperative parenting with his
victim (Conner, 2011: 257).
All forms of child abuse including abuse via exposure to IPV have consequences that
may potentially impact the community far beyond the family involved. According to the U.S.
Department of Health and Human Services Child Welfare Information Gateway, there are many
economic and social consequences related to child abuse and neglect. Economic costs may

include foster care and other social services used when children must be removed from the home
for their own safety. Additionally, battered mothers are more likely than non-battered mothers to
depend on welfare after leaving a relationship with the father of their children. These women and
their children are often likely to need ongoing social services to deal with the aftermath of the
abuse. Children who are exposed to IPV are more likely than others to suffer emotional
difficulties and become troublesome at school. They also experience increased rates of
criminality which impact the communities in which they live for decades after they leave the
home of their battering fathers (2015). While there appears to be an ongoing attitude in our
society that IPV is a private family matter, it is clear that this issue has the potential to impact
society far beyond the closed doors of the battered familys home.

Conclusion
According to the National Institute of Justice, Batterer intervention programs often do
not change offender behavior (Batterer: 2011). Perhaps the only way to stop current offenders
from abusing their victims is to separate them from their victims for good or at least for long
periods of time by implementing harsher punishments and increased jail time for perpetrators.
However, this will not happen as long as victims are too terrified to come forward and testify
against their batterers. While current batterers may be difficult to stop, we can bring about
change by focusing on the children of these perpetrators and seeking ways to break the cycle of
violence beginning with the children.
The children of a battered mother are by default themselves abused children. The court
system and investigators who are charged with making decisions regarding child custody in these
cases need to take into consideration the inherently abusive nature of the father and his likely
inability to properly parent his children. Additionally, if a battered mother was intimidated into

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agreeing to joint custody during an initial divorce agreement, she may not be allowed to bring up
the IPV in subsequent hearings. This often leads to battered women suffering years of abuse-viacourt-system from the battering ex-husband. More research is needed in this area to determine
the best methods for encouraging battered women to address the abuse in initial court
proceedings in order to remove the children from the influence of the battering parent as early as
possible and minimize the impact that the violence has on them long-term.
Battered women often choose not to press charges against their abusers out of fear of the
repercussions that will follow. Batterers are rarely detained for very long and often take steps to
intimidate their victims into silence at the first opportunity. A battered woman who has been
repeatedly let down by an unsympathetic legal system is likely to fear the immediate
consequences at the hands of her batterer of pressing charges more than she fears the future
abuse that will occur if she remains silent and keeps her abuser out of jail. It can take years of
waiting for the perfect circumstances for a battered woman to finally break free from the violent
relationship. Once she does finally escape, she will want to also remove her children from the
situation. Unfortunately, her years of silence make it difficult for her to prove to the courts that
her children are in danger. She may also fear losing her children should the courts decide that she
is guilty of neglect for failing to remove her children from the abusive situation sooner.
Batterers rarely abuse only one victim. In most cases, custody evaluators may be able to
interview prior victims and establish a pattern of behaviors on the part of the batterer that will
then establish his inability to effectively parent his children. Unfortunately, custody evaluators do
not currently have the tools available to them to be able to easily obtain this information. They
may also be burdened with heavy caseloads that will decrease the likelihood that they will fully
investigate abuse allegations. While the National Violent Offender and Domestic Violence
Registry provides a database of convicted offenders, a batterer will not be listed in this registry

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unless he is convicted. Additionally, he will not be listed if he is able to plead his case down to
disorderly conduct, which is common for batterers who are able to intimidate their victims into
not testifying against them (Prevent, 2015).
I recommend that a nationwide IPV database be implemented to document and track DV
incidents regardless of their legal outcomes. The database should include all police reports
involving IPV whether the suspected perpetrator is charged or not. The database should include
additional information from a variety of sources, including law enforcement, Child Protective
Services, and womens shelters to which a victim may report abuse without seeking help from
law enforcement. Doctors and other medical personnel should also be required to report
suspected DV incidents which would also be entered into the database. While this data may not
be used specifically to charge an abuser, its existence can help family courts establish patterns of
abuse that should be taken into consideration when determining whether a batterer should be
allowed access to his victims children. There should also be a federal law enacted that forbids
the courts from awarding joint custody, let alone sole legal custody to any parent who has a
history of perpetrating IPV.
The bottom line in this issue is the fact that intimate partner violence is not a private
family matter. IPV impacts society far beyond the family, and it is everyones business. It is
essential that we as a society get involved in fixing this issue rather than leaving it up to the
victims to solve their problems on their own. Perhaps the most important strategy that a society
may implement in an effort to eradicate IPV is to strive for equality and equal opportunities
among all of its people. Extensive research has proven that IPV occurs less in societies where
women have more power outside the home as well as inside (Bancroft & Lundy, 2002: 26). As a
society, we can combat IPV nationwide by empowering women and allowing them to play an
equal role in society to men.

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References
Bancroft, Lundy, and Jay G. Silverman. The Batterer as Parent: Addressing the Impact of
Domestic Violence on Family Dynamics. Thousand Oaks, CA: Sage Publications, 2002.
Print.
"Batterer Intervention Programs Often Do Not Change Offender Behavior." National Institute of
Justice. National Institute of Justice, 6 July 2011. Web. 01 July 2015.
Breiding, M. J., & Ziembroski, J. S. (2011). The relationship between intimate partner violence
and children's asthma in 10 US states/territories. Pediatric Allergy & Immunology, 22(1
part 2), e95-e100. doi:10.1111/j.1399-3038.2010.01087.x
Conner, D. H. (2011). Back to the Drawing Board: Barriers to Joint Decision-Making in Custody
Cases Involving Intimate Partner Violence. Duke Journal of Gender Law & Policy, 18(2),
223-260.
"Domestic Violence and Pregnancy." UCSF Medical Center. University of California San
Francisco, 2015. Web. 01 July 2015.
"Domestic Violence Statistics." IRIS Domestic Violence Center. Capital Area 24 Hour Crisis
Line: (225) 389-3001 or 1 (800) 541-9706, n.d. Web. 01 July 2015.
Harris, L. J. (2010). Failure to Protect from Exposure to Domestic Violence in Private
Custody Contests. Family Law Quarterly, 44(2), 169-195.
Knutson, J. F., Lawrence, E., Taber, S. M., Bank, L., & DeGarmo, D. S. (2009). Assessing
Childrens Exposure to Intimate Partner Violence. Clinical Child & Family Psychology
Review, 12(2), 157-173. doi:10.1007/s10567-009-0048-1.
Prevent Domestic Violence. (2015). National Domestic Violence Registry. N.p., n.d. Web. 01
July 2015.

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Schnurr, M. P., & Lohman, B. J. (2013). Longitudinal Impact of Toddlers' Exposure to Domestic
Violence. Journal of Aggression, Maltreatment & Trauma, 22(9), 1015-1031.
doi:10.1080/10926771.2013.834019.
Sillito, C., & Salari, S. (2011). Child Outcomes and Risk Factors in U.S. Homicide-Suicide
Cases 1999-2004. Journal of Family Violence, 26(4), 285-297. doi:10.1007/s10896-0119364-6
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Abuse and Neglect. Child Welfare Information Gateway. N.p., n.d. Web. 01 July 2015.

Further Readings
Bair-Merritt, M. H. (2011). Home Visiting Programs' Response to Intimate Partner Violence:
What We Know and Why It Matters for the Health of Our Children. Family Violence
Prevention & Health Practice, 1(11), 3.
Bhandari, S., Bullock, L. C., Anderson, K. M., Danis, F. S., & Sharps, P. W. (2011). Pregnancy
and Intimate Partner Violence: How Do Rural, Low-Income Women Cope?. Health Care
For Women International, 32(9), 833-854. doi:10.1080/07399332.2011.585532
Chibber, K. S., & Krishnan, S. (2011). Confronting Intimate Partner Violence: A Global Health
Priority. Mount Sinai Journal Of Medicine, 78(3), 449-457. doi:10.1002/msj.20259
Guerrero, D. V. (2009). Hypermasculinity, Intimate Partner Violence, Sexual Aggression, Social
Support, and Child Maltreatment Risk in Urban, Heterosexual Fathers Taking Parenting
Classes. Child Welfare, 88(4), 135-155.
Hester, M. (2011). The Three Planet Model: Towards an Understanding of Contradictions in

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Approaches to Women and Children's Safety in Contexts of Domestic Violence. British

Journal Of Social Work, 41(5), 837-853.
Leisenring, A. (2012). Victims Perceptions of Police Response to Intimate Partner
Violence. Journal Of Police Crisis Negotiations, 12(2), 146-164.
doi:10.1080/15332586.2012.728926
Liem, M., Levin, J., Holland, C., & Fox, J. (2013). The Nature and Prevalence of Familicide in
the United States, 2000-2009. Journal Of Family Violence, 28(4), 351-358.
doi:10.1007/s10896-013-9504-2
Mills, L., Barocas, B., & Ariel, B. (2013). The next generation of court-mandated domestic
violence treatment: a comparison study of batterer intervention and restorative justice
programs. Journal of Experimental Criminology, 9(1), 65-90. doi:10.1007/s11292-0129164-x
Modi, M. N., Palmer, S., & Armstrong, A. (2014). The Role of Violence against Women Act in
Addressing Intimate Partner Violence: A Public Health Issue. Journal Of Women's Health
(15409996), 23(3), 253-259. doi:10.1089/jwh.2013.4387
Tatum, K., & Clement, K. (2007). An Exploratory Analysis of Florida Law Enforcement
Domestic Violence Policies. American Journal Of Criminal Justice, 32(1/2), 45-56.
doi:10.1007/s12103-007-9009-8
Willis, D., Hawkins, J. W., Pearce, C. W., Phalen, J., Keet, M., & Singer, C. (2010). Children
Who Witness Violence: What Services Do They Need To Heal?. Issues In Mental Health
Nursing,31(9), 552-560. doi:10.3109/01612841003721461

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Biography of Author
Mandy Webster, M.S., M.A. is pursuing a graduate certificate in Women and Gender Studies at
I. State University. Her areas of interests include intimate partner violence and womens writing.
You may find Mandy online at the following websites:

Write on the World, a blog: https://writeontheworld.wordpress.com/

Facebook: https://www.facebook.com/pages/Mandy-Webster-Writer-EditorTeacher/131934116837936

Twitter: @missmandy76

Total Word Count is 3,381.

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