Journal of the Task Group on Child Custody Issues
Volume 5, Number 1, Spring1993 (Fourth Edition, 2001)
C/o University Studies, Portland State University, Portland, OR, 97207-0751
503-725-5844, 503-725-5977 (FAX), firstname.lastname@example.org
What is Fair for Children of Abusive Men?
By Jack C. Straton, Ph.D.
What About the Kids?
Custody and Visitation Decisions in Families with a History of Violence
National Training Project of the Duluth Domestic Abuse Project
Thursday, October 8, 1992, Duluth, Minnesota
I want to express my deep gratitude to Ellen Pence, Madeline Dupre, Jim Soderberg andthe others from the Duluth
Domestic Abuse Intervention Project for giving me this opportunity to speak with you. The State of Minnesota should
be proud that, quite literally, the world looks to this program for guidance on understanding and ending domestic violence.
I also want to acknowledge how much I continually learn from Barbara Hart, of the Pennsylvania Coalition Against Domestic
I will first critically examine the criterion at the base of all custody laws today, “What is in the best
interests of the children?” I will the talk about children’s choice in these matters. Then I will examine the
actual effects of wife-battering on children, and develop an alternative paradigm for custody based on those effects. Fromthis
I will examine the question, “Is it ever appropriate to ever give a batter custody of a child?”
In the process, I am going to talk today about the effects of male power and control over children, not about
parental power and control. I know that it is popular these days to de-gender family conflict, to talk about “spouse
abuse” and “family violence”rather than “wife beating” and “rape.” I know that we
want a society in which men nurture children to the same extent that women do. I know that fathers and mothers should both
be capable parents. But if you ask “What about the kids?” I want to give you aerious answer. I cannot seriously
entertain the myth that our society really is gender neutral, so to consider “What about the kids?” while
pretending such neutrality is to engage in denial and cognitive dissonance. I cannot hope to arrive at an answer that
will positively affect reality if my underlying assumptions are based on fantasy.
So I am going to talk today about the effects of male power and control over children, not about parental power
and control. As I cite examples, some of you may hear your internal voice saying, “But women do that, too.” As
this happens I would ask you to beaware that such voices are often the voice of guilt that
try to distract us from what we really know about men’s violence
so that we need not take responsibility for this violence. It is true, for example, that some women do battermen. But the
number of severe cases of this type is so low when compared with the virtual war of men’s violence against women, that
they cannot be seen above the statistical noise. This voice that says “But women do that, too” has as
its purpose, not compassion for battered men or lesbians, but a distraction from the noble goal of endingbattering of women.
So as you hear this voice today, become consciously aware of it. Let it into your conscious mind for a moment,
and then let it drift on. It is just a tape recording that youcan always come back to in an hour or two if there is a need.
If you find that you just can’t contain this voice, that others must hear this tape recording, please do not hesitateto
raise a hand or even to shout it out. We will pause to give it some space.
Whose Best Interests?
I want to begin by instilling in you a healthy skepticism about the “Best interests of the child”
criterion that underlies custody laws today.
It is important to acknowledge that the term “the best interestsof the child” is so vague thatsome
adult must state what constitutes “best interest.” In practice courts rely on social and psychological professionals
to make this determination. While such individuals are surely skilled and caring individuals, it must be admitted that they
operate out of a set of professional norms that are never openly discussed, and are subject to professional fad. For instance,
Irene Thèry of France notes thattoday “there is a real reversal of traditional models. The stigmatization of remarriage
and the prescriptionof fidelity have given place to the stigmatization of solitude anthe prescription of ‘remaking one’s
life,’ i.e. finding a new partner.”1
As Martha L. Fineman, of this country, says, “A desire for sole custody has now been labeled ‘pathological’.”
There are obvious and serious consequences for batteredwomen with the “creation of professional norms which
would give custody to . . . the parent most willing to share the child with the other parent.”2
In addition, the “best interests” criterion is flawed because of its unpredictability, which presumably
“has an impact on the number of cases brought before courts, sincethere is a stronger reason to have a case tried when
the outcome is uncertain.. . . The threat of bringing the case to court, with an uncertain outcome, may easily be used as
pressure on the other party in order to obtain advantages in the [out of court] economic settlement,” e.g. lower child
support payments.3 In this way the “best
interests” criterion ironically may lead to the impoverishment of children. This is more serious in cases involving
child abuse where the mother’s fear of losing custody to the father is extreme.
Finally, Fineman notes that “rules that focus on the performance of nurturing or caretaking have been
attacked, not because they are explicitly gender biased, but because in operation they will act to favor women who traditionally
perform such tasks,”4 though clearly
any man can choose to become the primary caretaker. So instead of viewing past behavior as a predictor of future behavior
on behalf of the child, the “best interests” criterion looks at present status,
such as incomeor a new partner (a more frequent occurrence for the fathers). But Sandberg observes that in “consequence,
the result of treating people equally when their situation is in fact different is a de facto inequality. Fathers have, because of
the new legislation, obtained a stronger position in child custody cases than their efforts in the caretakingof children should
Joint Custody is clearly a type of “best interests” criterion. It explicitly assumes that joint
custody is in the child’s best interests.
There are severe consequences for battered women subjected to joint custody presumptions. Joint custody forced upon
two hostileparents can create a toxic psychological environment for a child.
Because 95% of all joint custody awards are for joint legal custody6 the living
arrangements are exactly the same as under a sole-custody/ visitation order. However joint legal custody does expand the right
of the non-primary-caretaking parent to impede the ability of the primary-caretaker to make needed and timely decisions.
Some provisions in joint legal custody laws require a minimum visitation period for the noncustodial parent
that can be limited only when there is a threat of physical harm tothe child. This threat is difficult to prove, especially when the accuseris perceived as a litigant with
avested interest in distortion. And such provisions also do not addresspsychological and emotional abuse.
The threat of a joint custody decision may be used by the husband to bargain out of court for a reduction in
child support payments (trading children for money in a throwback to the 19th century lawsin which children were considered
to be property of the father). The potential for bartering away the child’s financial resources because of a bad faith
request for custody is reinforced by (“friendly parent”) provisions that give a preference to the parent requesting
joint custody when the alternative of sole custody is considered by the court.
Such “friendly parent” provisions also guarantee an abusive father or husband access to
the victim. Men who batter their wives may also sexually abuse their children.7 Themore fearful a woman is of the father gaining sole custody, thmore
willing she may be to submit to joint custody or to a reduction in child support.
Children’s right to choose vs. abuser’s manipulation of a child.
I want to talk about the question of children advocating on their own behalf. As one who would like to see the
rights of children recognized and affirmed, I am temptedto say that, yes, a child should have some input into a decision about
with whom they will live. Yet in the present case we have a man who, though he beats his wife, is often very charismatic
to the rest of the world, and perhaps to his kids. And even if he beats his kids as well, it is known that intermittent affection
can be a stronger binding agent than consistent affection. We also have a man whohas demonstrated his power over another human
being through brutality.
It is known that older children will sometimes join in the abuse of their mother. Since it isthe older children
to whom we might be tempted to accede some measure of choice, I find this mirroring of the father’s brutality disquieting.
I do not ask you to take one side or the other of this question, but to be cautious until someone more wise than I can resolve
the knot for you.
The Primary Caretaker Rule
My preference for the primary caretaker criterion will be obvious as I speak today. In Sandberg’s summary:
This criterion “would hardly lead to worse decisions than ‘the best interests of the child’, considering
all the uncertainty it implies.”“It should only exceptionally result in a worse solution than if the other parent
was chosen. . . . That parent has demonstrated a willingness to take care of the child and has practice doing the job. There
is also reason to believe that the child is emotionally more attached to her or him. Besides,
during the marriage the parties after all set up the caretaker arrangement together,
and would hardly have done this while thinking that the actual primary caretaker was less fit than the other parent”8
For today’s discussion, I will point out that since men are nearly always the batterers in domestic violence
and women are nearly always the primary caretakers for the children, adoption of the primary caretaker criterion for custody
would enormously relieve both the courts and advocates for battered women of much of their work around custody decisions.
Murdering one’s wife
Before leaving this section, I want to note just how far the “best interest”criterion can be stretched.
A Florida court in 1987 acknowledged that a
“man’s violent and