COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH DISTRICT COURT OF APPEAL

DIVISION THREE
In re the Guardianship
Sydney & Justin S.
Case No. G021264
(Super. Ct.
Case No. A 174254)
APPEAL FROM THE SUPERIOR COURT OF ORANGE COUNTY
NANCY WIEBEN STOCK, JUDGE PRESIDING
AMICUS CURIAE BRIEF OF
STEPHEN E. DOYNE, Ph.D., J. REID MELOY, Ph.D.,
DON DUTTON, Ph.D., PETER JAFFE, Ph.D., PROFESSOR
JANET BOWERMASTER, THE PUBLIC LAW CENTER, THE CALIFORNIA
WOMEN'S LAW CENTER, AND THE CALIFORNIA ALLIANCE AGAINST
DOMESTIC VIOLENCE
STEPHEN TEMKO, CFLS, CALS
ATTORNEY AT LAW
State Bar No. 67785
1666 Garnet Avenue, No. 502
San Diego, California 92109
(619) 274-3538
PAUL MONES, LLB
ATTORNEY AT LAW
State Bar No. 128329
P.O. Box 5701
Santa Monica, CA 90405
(310) 396-3743
Attorneys for Amici
I.
II.
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE . . .
DOMESTIC VIOLENCE IS AN EPIDEMIC.
A. Batterers
B. Stalkers ..
CHILDREN ARE AT GREAT RISK LIVING WITH A
PERPETRATOR OF DOMESTIC VIOLENCE.
A. Emotional Abuse to Children .
B. Impact of Exposure to Violence.
C. Neurobiological Changes and the Cycle
of Domestic Violence ........ .
. 1
. 9
. 10
. 12
. 16
. 17
. 18
. 2 0
III. FEAR OF LOSING CUSTODY OFTEN TRAPS BATTERED
SPOUSES. . . . . . . . . . . . . . . . 23
IV. DOMESTIC VIOLENCE SHOULD BE A PRIMARY
v.
VI.
CONSIDERATION IN CHILD CUSTODY DECISIONS .27
A. Protecting Children from Harm. . . . .27
B. Best Interests and Domestic Violence. . . 31
c. Spousal Murder and Detriment to Children .. 32
THE BEST INTERESTS OF CHILDREN ARE MORE
IMPORTANT THAN THOSE OF BIOLOGICAL PARENTS.
CONCLUSION ...... .
. 36
40
TABLE OF AUTHORITIES
CASES
Barkaloff v. Woodward (1996)
47 Cal. App. 4th 303
In re David C. (1984) 154 Cal. App. 3d. 1189 ..
. . . . 7
29
Guardianship of Phillip B. (1983) 139 Cal. App. 3d 407 .. 32
Guardianship of Stephen G. (1995) 40 Cal. App. 4th 1418 . 28
In re Heather A. (1996) 52 Cal. App. 4th 183.
In re Jon N. (1986) 179 Cal. App. 3d 156
People v. Humphrey (1996) 13 Cal. 4th 1073.
. 29, 30, 38
CIVIL CODE
Family Code 3011.
Family Code 6203.
Family Code 6211.
LEGISLATIVE HISTORY
1, 30
. 7
28, 38
9
. . 9
California Assembly Bill 200 . . . . . . . . . . . . . . . 38
BOOKS AND LAW REVIEW
deBecker, The Gift of Fear: Survival Signals that
Protect Us from Violence (1997) Little, Brown and
Company . . . . . . . . . . . . . . . . . . . .14, 33, 34
Dutton, The Domestic Assault of Women (1995) UBC
Press/Vancouver . . . . . . . . . . . . . . . . . 30
Gelles and Strauss, Intimate Violence (1988)
Simon & Schuster . . . . . . . . . . . . . 16, 21, 33
Peled, Jaffe, Edleson Ending the Cycle of Violence, (1995)
SAGE Publications. . . . . . . . . . . . . . . . . . . 5
OTHER AUTHORITIES
ABA, Center on Children and the Law, The Impact of
Domestic Violence on Children: A Report to the
President of the American Bar Association.
Washington, D.C. . . . . ....
Ackerman and Ackerman, Child Custody Evaluation Practices:
39
A Survey of Psychologists 30 (3) Fam L.Q. 565 (1996) 30
APA, Issues and Dilemmas in Family Violence (1996)
American Psychological Association Presidential
Task Force on Violence and the Family. . 25
Crawford and Gartner, Woman killing, intimate femicide
in Ontario: 1974-1990, (1992) Toronto: The Women We
Honor Action Committee . . . .17
Dalton, Domestic Violence in California, A Status Report
to the California Department of Health Services,
(1996) . . . . . . . . . . . . . . . . . . . 9
Dobosh, Dobash, Wilson, and Daly, The Myth of Sexual
Symmetry in Marital Violence (1992) Social Problems,
39 (1) . . . . . . . . . .11
Dutton, Profiling Wife Assaulters: Some Evidence for a
Trimodal Analysis (1988), Violence and Victims, 3
( 1 ) 1 pp 5 - 3 0 11
Dutton, Starzomski, & Ryan, "Antecedents of Borderline
Personality Disorder Organization in Wife Assaulters"
(1996) Fam. Violence 11 (2). .11
Dutton, Starzomski & Van Ginkel, "The role of shame and
guilt in intergenerational transmission of
abusiveness" (1995) Violence and Victims 10 (2). . .11
Hilton, Battered women's concerns about their children
witnessing wife assault (1992) J. of Interpersonal
Violence, 7 . . . . . . . . . . . . 23
Hotaling and Sugarman, An Analysis of Husband and Wife
Violence: The Current State of Knowledge (1986)
Violence and Victims, 11 . . . . . .21
Jacobson, Gottman, Waltz, Rushe, Babcock, and Holtzworth-
Munroe, "Affect, Verbal Content, and Psychophysiology
in the Arguments of Couples With a Violent Husband"
(1994) 62 No. 5, Journal of Consulting and
Clinical Psychology, . . . . . . . . .
Jaffe, Lemon, Sandler and Wolfe, Working Together to End
.14
Domestic Violence, (1996) . . . . . . . . . . . . 5
Jaffe, Peled, and Edelson, Ending the Cycle of Violence:
Community Responses to children of battered women,
( 19 91) SAGE . . . . . . . . 5
Jaffe, Children of Domestic Violence: Special Challenges
in Custody and Visitation Dispute Resolution in
Lemon, Domestic Violence and Children: Resolving
Custody and Visitation Disputes, A National
Judicial Curriculum (1995) The Family Violence
Prevention Fund, Chap 2, . . . . . .10
Jaffe, Wolfe, & Wilson, Children of Battered Women,
(1990) . . . . . . . 5
Jaffe, Wolfe, Wilson & Zak, Emotional and physical health
oroblems of battered women (1986) Canadian
Journal of Psychiatry, 31 . . . . . . . .. 17
Johnston and Campbell, Parent-child relationship in
domestic violence families disputing custody (1993)
Fam. Concil. Courts Rev. 31 . . . . . 24
Meloy, "Stalking (obsessional following) : A Review of
Some Preliminary studies" (1996) Aggression and
Violent Behavior, Vol 1, No. 2 . . . . . . .. 12,13,14
Meloy and Gothert, A Demographic and Clinical Comparison
of Obsessional Followers and Mentally Disordered
Offenders (1995) American Journal of Psychiatry,
Vol 152:2 . . . . . . 14
Model Code on Family Violence (1994) 37
Novello, The Domestic Violence Issue:
(1992) Am. Med. News Mar. 23/30,
Hear Our Voices
Peled, The experience of living with violence for
preadolescent child witnesses of women abuse
(1993) Unpublished doctoral dissertation, Univ.
.10
of Minn. Minneapolis. . . . . . . . . . 17
Perry, "Incubated in Terror: Neurodevelopmental Factors
in the 'Cycle of Violence'", in Osofsky, Children
in a Violent Society (1997) Guilford, Chap. 2. . 20,30
Rodgers, Wife Assault: The findings of a National Survey
(1994) Juristat, 14. . . . . . 16
Walker, Psychology and Violence Against Women (1989) Am.
Psychol. 44 . . . . . . . . . . . . . . . . . . . 21
Westra and Martin, Children of Battered Women (1981) Vol
10 Maternal Child Nursing J . . . . . . . . . . . 10
Zorza, Woman battering: a major cause of homelessness
(1991) Clearinghouse Review, 25 . . . . . . . . . . . 23
Zorza, "Friendly parent" provisions in custody
determinations (1992) Clearinghouse Review 26 .... 24
INTEREST OF AMICUS CURIAE
The authors, who come from the disciplines of child,
adolescent, adult and forensic psychology, and family law, contend
that the risk factors presented to children in divorced families by
a battering parent are not as easily observable as a bruise or a
split lip that needs stitches. Rather, a parent who abuses another
parent is abusing the children by exposing them to a climate of
fear and a poor model of conflict resolution in intimate
relationships.
Domestic violence which harms spouses and children includes,
but is not limited to, psychological verbal abuse, sexual abuse,
stalking, physical abuse, or, at its worst, murder. In determining
best interests, Family Courts historically consider a broad
spectrum of parents' behavior as it all affects children. In this
regard, the entire history of domestic violent behavior of a parent
who is a batterer - from verbal intimidation to homicide - should
be considered by the court to properly assess what directly or
indirectly
1
causes harm to children. In the extreme case of spousal
murder, the detriment
2
to the children by the loss of a parent
1
In re Jon N. (1986) 179 Cal. App. 3d 156, 161, 224 Cal.
Rptr. 319 the court found there had been "secondary abuse" in the
form of angry domestic violence between the parents which must have
inevitably affected the child even though he had not been injured.
2
"Whether parental custody would be detrimental i,s not
judged objectively (nor is it equated with the sort of 'parental
unfitness' that would require intervention by the state through a
juvenile court depending proceeding). Rather, instead of
prescribing rigid statutory guidelines, the legislative intent is
to leave court with broad flexibility to make the ultimate decision
based on the specific facts in light of the totality of the
evidence. (Guardianship of Phillip B. (1983) 139 Cal. App. 3d 407,
should be considered if allegations are made that this loss is
related to the actions of the surviving parent.
Moreover, when
children have lost a parent, they will cling to the surviving
parent even if that person has been a batterer.
However, the
greatest future detriment these children face is that they will
live to experience the surviving parent beat another partner,
recycling the climate of fear that is so detrimental to children.
Therefore, because the psychological risks to children living
with a batterer are high, amici believe there should be a
rebuttable presumption
3
against sole or joint custody for
perpetrators of domestic violence, even if that parent has never
directly abused the children.
Amici's respective careers have been partially defined by the
questions of why domestic violence occurs and how it affects
children.
Stephen E. Doyne. Ph.D. is a clinical and forensic
psychologist in private practice in San Diego. Dr. Doyne received
421.) II
3
In 1994, the National Council of Juvenile and Family Court
Judges adopted a Model Code on Domestic and Family Violence
(Hereafter referred to as "Model Code") which stated: "In every
proceeding where there is, at least, at issue a dispute as to
custody of a child, a determination by the court that domestic or
family violence has occurred, raises a rebuttable presumption that
is detrimental to the child and not in the best interest 9f the
child to be placed in the sole custody, joint legal custody, or
joint physical custody with a perpetrator of family violence.
Model Code on Domestic and Family Violence, (1994) National Council
of Juvenile and Family Court Judges, Chapter 4: Family and
Children, Sec. 401, Presumption Concerning Custody, p.33)"
2
his Ph.D. in Clinical Psychology at Peabody College of Vanderbilt
University. He is a Diplomate of the American Board of Forensic
Examiners, and is a Diplomate of the American Board of
Psychological Specialists in the area of child custody evaluations.
For a majority of his career, he has been conducting child custody
evaluations for the Superior Courts in Southern California. Dr.
Doyne is Past-President of the California Association of Psychology
Providers and Fellow of the San Diego Psychological Association.
In 1991, he received an American Psychological Association Practice
Directorate Leadership Award for Outstanding Contribution to
American Psychology for his work associated with the California
Association of Psychology Providers.
J. Reid Meloy, Ph.D. is a Diplomate in forensic psychology of
the American Board of Professional Psychology. Dr. Meloy is Chief
of the Court Services, Forensic Mental Health Division for San
Diego County, and also devotes his time to a private civil and
criminal forensic practice, research, writing, and teaching. He is
an associate clinical professor of psychiatry at the University of
California, San Diego, School of Medicine and an adjunct professor
at the University of San Diego School of Law. He is also a Fellow
of the Society for Personality Assessment, and is currently
President of the American Academy of Forensic Psychology. In 1992,
he received the Distinguished Contribution to Psychology. as a
Profession Award from the California Psychological Association. He
3
has authored or co-authored over one hundred papers published in
peer-reviewed psychiatric and psychological journals, and has
written or edited four books. Dr. Meloy is working on his fifth
book, The Psychology of Stalking, to be published in 1998. He is
a sought-after speaker and psychological consultant on various
civil and criminal cases throughout the United States.
Don Dutton, Ph.D. received his doctorate in Social Psychology
from the University of Toronto. While on faculty at the University.
of British Columbia, he began to investigate the criminal justice
response to spousal assault, preparing a government report that
outlined the need for a more aggressive response, and subsequently
trained police in "domestic disturbance" intervention techniques.
From 1979 to the present, Dr. Dutton has served as a
psychotherapist in the Assaulting Husbands Project, a court
mandated treatment program for men convicted of wife assault. In
the course of providing treatment for these men, he drew on his
background in both social and clinical psychology to develop a
psychological model for intimate abusiveness. He has published
over eighty papers and three books, including the Domestic Assault
of Women and The Batterer: A Psychological Profile. Dr. Dutton is
currently professor of psychology at the University of British
Columbia.
Peter G. Jaffe, Ph.D. is Director of the London Family Court
Clinic and a trustee for the London Board of Education (London,
4
Ontario, Canada) . He is an adjunct associate professor in the
Departments of Psychology and Psychiatry at the University of
Western Ontario. Dr. Jaffe has published widely on the topic of
domestic violence and is co-author, with David A. Wolfe and Susan
K. Wilson, of Children of Battered Women (1990), Ending the Cycle
of Violence: Community responses to children of battered women,
(1991, Sage) (with Einat Peled and Jeffrey L. Edleson), and Working
Together to End Domestic Violence, (1996, Mancorp, with Nancy
Lemon, Jack Sandler, and David Wolfe). He received his
undergraduate training from McGill University and his Ph.D. in
clinical psychology from the University of Western Ontario. Dr.
Jaffe recently served as a member of the Canadian Panel on Violence
Against Women, a federally appointed committee that examined
solutions to violence against women across Canada.
Janet M. Bowermaster, J.D. is a professor of law at California
Western School of Law in San Diego. She received her law degree
from the University of Illinois College of Law. For the last
several years she has taught courses in family law and children and
the law. More recently, she has taught an advanced seminar on
domestic violence. Professor Bowermaster is the author of several
law review articles on child custody.
Her most recent article,
"Relocation Custody Disputes Involving Domestic Violence" will
appear in the University of Kansas Law Review in March of.1998.
Professor Bowermaster is a member of the American Bar Association
Family Law Committee, the Society of American Law Teachers, the
5
National Association of Counsel for. Children, the Association of
Family and Conciliation Courts, the Law and Society Association and
the San Diego Domestic Violence Council Legal Action Committee.
She regularly assists local domestic violence agencies by
conducting trainings for hot-line volunteers on custody issues in
domestic violence.
Public Law Center is the only private bar, public interest law
firm in Orange County, California. Created from a 1989 merger of
Amicus Publico and the Orange County Public Interest Law Advocates,
The Public Law Center brings eighteen years of experience to the
task of administering private attorney involvement programs.
Public Law Center provides free legal services to low income Orange
County residents through its staff and volunteer, private
attorneys. The Public Law Center also challenges systemic
injustices through litigation and other forms of advocacy.
California Women's Law Center is a private, non-profit, public
interest law center in Santa Ana, California specializing in the
civil rights of women and girls. California Women's Law Center was
established in 1989 to address the comprehensive civil rights of
women and girls in the following priority areas: Family Law,
Violence Against Women, Reproductive rights, Sex Discrimination and
Child Care.
Since its inception, California Women's Law Center has
maintained a multi-disciplinary approach to domestic violence and
6
family law issues by focusitig on the inter-relationship of these
areas in the lives of women and children and the policies affecting
them.
California Alliance Against Domestic Violence, headquartered
in Sacramento, is a statewide coalition responding to the needs and
interests of battered women and their children. As the sole
statewide voice for victims of domestic violence, the Alliance has
worked since 1976 with policy makers, advocacy organizations, civil
and criminal justice professionals, child protective service
workers, law enforcement officers, and others to develop specific
proposals to aid the victims of domestic violence. These
collaborations mark the first attempt in California at a
comprehensive approach to this devastating problem. The Alliance
was incorporated in 1993 as a non-profit corporation.
California Alliance Against Domestic Violence has participated
in amicus briefs in several important California cases, including
Barkaloff v. Woodward, (1996) 47 Cal. App. 4th 303, and People v.
Humphrey (1996) 13 Cal. 4th 1073.
7
With regard to the case at bench, In re Guardianship of Sydney
and Justin S., Case No Al74254 amicus curiae express no clinical
opinion. Rather, amici requests that this court examine the
persuasive data on the issue of family violence and its effects on
children, particularly as they relate to divorce and custody
decisions.
8
I. DOMESTIC VIOLENCE IS AN EPIDEMIC
Domestic violence
4
is a pattern of behavior that includes, but
is not limited to, the following forms of abuse:
PSYCHOLOGICAL: shouting, swearing, taunting, threat-
ening, degrading, demeaning, inducing
fear, gender harassment, stalking
SEXUAL:
PHYSICAL:
FINANCIAL:
rape, incest, unwanted sexual touching,
date rape, harassment
slapping, shoving, hitting, mutilation,
stabbing, assault, murder
withholding, diverting, embezzling or
controlling funds (Dutton, The Domestic
Assault of Women: Psychological and
Criminal Justice Perspectives (1995) UBC
Press, pp. 3-10)
According to a 1996 report by the California Department of
Health Services, domestic violence - both reported and unreported
- occurs an estimated four million times a year, with two million
of these incidents being severe assaults.
(Dalton, Domestic
Violence in California, A Status Report to the California
Department of Health Services, (1996) p. 3.)
The report also
estimates that as many as one-third of emergency room visits relate
4
According to Family Code Section 6203, nabuse means
intentionally or recklessly to cause or attempt to cause bodily
injury, or sexual assault, or to place a person in reasonable
apprehension of imminent serious bodily injury to that person or to
anothern.
According to Family Code section 6211: nDomestic violence is
abuse perpetrated against any of the following persons: a) a
spouse or former spouse, b) a cohabitant or former cohabitant, as
defined in section 6209, c) a person with whom the is
having or has had a dating or engagement relationship, d) a person
with whom the respondent has had a child, 3) a child of a party of
a child who is subject to an action under the Uniform Parentage
Act, f) any other person related by consanguinity or affinity
within the second degree.n
9
to domestic violence and apparently, one-fifth to one-fourth of
pregnant women seeking prenatal care are in a battering
relationship. Further, medical care to victims of domestic
violence costs an estimated $1.8 billion dollars per year. (Dalton,
supra, (1996) at p. 3.) Currently, domestic violence is the
leading cause of injury to women ages 14 to 44, more common than
automobile accidents, muggings, and rapes combined (Novello, The
Domestic Violence Issue: Hear Our Voices (1992) Am. Med. News Mar.
23/30, p. 25.)
Children do not have to be victims of abuse to suffer
emotional detriment from living with a batterer. In fact, children
raised in a home in which spousal abuse occurs experience the same
fear as battered children (Westra & Martin, Children of Battered
Women (1981) Vol 10. Maternal Child Nursing J., pp. 41, 49, and
SO.) This is why experts in the field, such as Peter Jaffe, Ph.D.,
point out that domestic violence should be more properly termed
violence against women and children since the majority of victims
are women and children. (Jaffe, Children of Domestic Violence:
Special Challenges in Custody and Visitation Dispute Resolution in
Lemon, Domestic Violence and Children: Resolving Custody and
Visitation Disputes, A National Judicial Curriculum ( 1995) The
Family Violence Prevention Fund, Chap 2, pp. 19-21.)
A. BATTERERS
The personality characteristics of batterers especially
their violent tendencies - are important in evaluating whether it
will be detrimental for children to be placed in that parent's
10
custody.
Donald Dutton, Ph.D., describes several types of batterers,
although there is no single profile. (Dutton, supra, at p. 121.)
Statistically, batterers tend to be male, rather than female.
(Dobash, Dobash, Wilson & Daly, The Myth of Sexual Symmetry in
Marital Violence (1992) Social Problems, 39 (1), pp. 71-76.)
Dutton concludes that the wife-assaulters have pronounced needs for
interpersonal control but do not possess heal thy mechanisms to
generate this control. From his numerous research studies, Dr.
Dutton concludes that the batterer reacts with exaggerated arousal
in anger to scenes of male/female conflict. (Dutton, supra, at p.
94.)
Dr. Dutton's data found that wife assaulters subdivide into
three subtypes: those who act out anger impulsively in the context
of intimate relationships, those who use violence instrumentally
and generally, and those who repress or over control a deep
resentment. (Dutton, Profiling Wife Assaulters: Some Evidence for
a Trimodal Analysis (1988), Violence and Victims, 3 (1), pp. 5-30.)
A typical background includes deep shaming experiences usually by
the father of the eventual perpetrator, insecure attachment and
exposure to violent role models. (Dutton, Starzomski, & Ryan.
"Antecedents of Borderline Personality Disorder Organization in
Wife Assaulters" (1996) Fam. Violence. 11 (2), pp. 131-132.)
However, all wife assaulters do not have similar etiologies: they
differ both in what triggers the violence and how they rationalize
their behavior. (Dutton, Starzomski, and van Ginkel. "The role of
11
shame and guilt in intergenerational transmission of abusiveness"
(1995) Violence and Victims 10(2), pp. 121-131.) Further, many
offenders are serial batterers, i.e., just because one relationship
is over does not mean that the perpetrator will not expose the
children to violence in the next relationship as two-thirds of
batterers re-offend. (Dutton, supra, at p. 25.)
B. STALKERS
Within the subset of batterers, J. Reid Meloy, Ph.D., has
identified a subgroup who stalk women, some of whom present the
greatest risk of domestic violence or spousal murder. In his
research, he concludes that the vast majority - in excess of 80% of
stalking victims are prior acquaintances or former sexual
intimates of the stalker. (Meloy, "Stalking (obsessional following) :
A Review of Some Preliminary Studies" (1996) Aggression and Violent
Behavior, Vol 1, No.2, pp. 147-162.) Although Meloy notes there is
no published study on the relationship between domestic violence
and stalking per se, he believes that it is likely domestic
violence increases the risk of stalking. One source of data
supporting this theory is the fact that restraining order
violations increase as violence prior to separation in a marriage
increases.
Meloy, whose specialty is "obsessional following" or stalking,
found in a review of all published studies that the risk of
violence among individuals who stalk ranges from 3 to 36% , with
approximately one in four individuals (25-30%) being physically
assaultive towards their object of pursuit. (Meloy, supra, at pp.
12
147-162.) About half of those who stalk threaten persons or
property and 25% of those individuals who make such threats are, in
fact, violent toward persons or property. Although the homicide
rate for those who stalk is less than 2
!1,-
0 I this is more than 200
times the current homicide rate in the general population of the
United States. (Meloy, supra, at pp. 158-159.)
Meloy also notes that other research indicates that over
three-fourths of spousal homicides occurring after separation are
preceded by behaviors consistent with the accepted definition of
stalking: a long-term pattern of threat and harassment that causes
the victim to fear for her safety. (Meloy, supra, at pp. 147-162.)
This is a particularly useful finding because it may be a
predictive variable in separated spousal homicide since most
spousal batterers do not murder their mates. (Meloy, supra, at pp.
147-162.)
Dr. Meloy's motivational theory of stalking is psychodynamic.
The stalker initially develops a narcissistic linking fantasy to
the object, perhaps his wife, in which he is special, idealized by,
or destined to be with her forever. Her rejection of him in a
divorce or separation stimulates deep humiliation which is defended
against with abandonment rage. This intense anger fuels the
pursuit of his ex-wife to decimate and devalue her, paradoxically
to restore his idealized fantasy of her.
In other words, her
physical death is seen by the stalker as the death of the rejecting
spouse, which makes room for the restoration in the stalker's mind
of the perfect (narcissistic) fantasy of an unconditionally
13
accepting spouse. (Meloy, supra, at pp. 147-162.) Meloy's theory
is supported by the empirical findings of pathological narcissism
among those who stalk. (Meloy and Gothert, A Demographic and
Clinical Comparison of Obsessional Followers and Mentally
Disordered Offenders (1995) American Journal of Psychiatry, Vol
152:2, pp. 258-263.)
In contrast to the common stereotype, batterers are not always
out of control when abusing. In fact, some batterers' heart rates
actually drop and they become physiologically calmer as they become
more violent. (Jacobson, Gottman, Waltz, Rushe, Babcock, and
Holtzworth-Munroe, "Affect, Verbal Content, and Psychophysiology in
the Arguments of Couples With a Violent Husband" (1994) 62 No.5,
Journal of Consulting and Clinical Psychology, pp. 982-988.) This
finding is consistent with deBecker' s explanation of domestic
assault and murder:
"Though leaving is the best response to violence, it is
in trying to leave that most women get killed. This
dispels the dangerous myth about spousal killings: they
happen in the heat of argument. In fact, the majority of
husbands who kill their wives stalk them first, and far
from the 'crime of passion' that it is so often called,
killing a wife is usually a decision, not a loss of
control. Those men who are most violent are not at all
carried away by fury." (deBecker, The Gift of Fear:
survival Signals that Protect Us From Violence (1997)
Little, Brown, p. 183.)
14
Thus, a batterer - who may be capable of spousal murder - can
present as a person not likely to lose emotional control, or be
harmful to children.
5
But living with a batterer is an enormous
risk to children, as will be seen in the next section.
5
In the case at bench, Judge Nancy Weiben Stock described the
father as "a man who has not in the past, or is not likely in the
future to lose control of himself in such a manner as to
emotionally or physically harm his two young children" (In re Sydney
and Justin S., Order and Findings, (1996), p. 6.)
15
II. CHILDREN ARE AT GREAT RISK LIVING WITH A PERPETRATOR OF
DOMESTIC VIOLENCE
The best available research has found that domestic violence
has dramatic and long-lasting detrimental effects on children.
Studies on the incidence of violence in homes suggest a wide
range of estimates depending on the research methodology and
definition of violence. Two of the more recent comprehensive
surveys estimate that at least 30% of all women will suffer from
some form of violence in an adult relationship during their life
span. (Jaffe, supra, at pp. 19-21.) For 10% of the women, this
violence is so severe that they worry for their personal safety.
(Rodgers, Wife Assault: The Findings of a National Survey (1994)
Juristat, 14. pp. 1-22.) Their fears are well-founded when one
considers that the majority of female homicide victims are killed
by their partner, ex-partner, or boyfriend. (Jaffe, supra, at p.
19)
Although the terms "family violence" and "domestic violence"
are commonly utilized, the most accurate term is "maltreatment of
women and children", since they represent the vast majority of the
victims. (Jaffe, supra, at p. 20.) Police forces across North
America have reported that 90% of the victims of family violence
are women and children. (Jaffe, supra, at p. 20.) Men are also
abused, but in most instances, it is men's violence against women
which creates greater pain and suffering. A large proportion of
women's violence toward men is in self-defense. (Gelles & Strauss,
Intimate Violence (1988) Simon & Schuster, pp. 18-20.)
16
A. EMOTIONAL ABUSE TO CHILDREN
Although the term "violence" is usually associated with
physical or sexual violence, most victims report that emotional or
psychological abuse can have the most persistent long-term effects.
(Jaffe, supra, at p. 21-22.) This abuse is characterized by
threats, demeaning or belittling comments, and an attempt to create
a family climate of fear, terror, and insecurity.
Although many parents within violent families think that they
have protected their children from the violence, between 80% and
90% of children indicate the opposite. (Jaffe, Wolfe, Wilson & Zak.
Emotional and physical health problems of battered women (1986)
Canadian Journal of Psychiatry 31, pp. 625-629.) Most children not
only are aware of what happened, but they can give detailed
descriptions about the escalation of the violence. Children may be
at their bedroom door, at the top of the stairs, or they may enter
the room shortly after a violent episode, but they know too well
the reality of the violence and the emotional and physical
consequences to their mother. (Peled, The experience of living with
violence for preadolescent child witnesses of women abuse (1993)
Unpublished doctoral dissertation, Univ. of Minn. Minneapolis.) At
the extreme, when women are murdered by their husbands, children
are present in approximately 25% of the cases. (Crawford & Gartner,
Woman killing, intimate femicide in Ontario: 1974-1990 (1992)
Toronto: The Women We Honor Action Committee.)
The term "witness", or exposure to violence is not just the
observation of discrete events, but rather, a child's total
17
experience of fear and insecurity of what happens, what they
anticipate happening and the aftermath of physical, sexual, and
emotional abuse in the family. (Jaffe, supra, at p. 21-22.) Murder
of one spouse by another - witnessed or not - is the ultimate
exposure children can have to family violence.
B. IMPACT OF EXPOSURE TO VIOLENCE
The impact of the exposure to violence has both short-term and
long-term consequences that depend on the children's age, gender,
stage of development, and role with the family. (Jaffe, supra, at
p. 21.)
Preschool children who are exposed to this violence may suffer
from nightmares or other sleep disturbances. The trauma in their
lives causes great confusion and insecurity that may lead to
regressive behavior, such as excessive clinging to adults and/or
fear of being left alone. (Jaffe, supra, at p. 21.) Some children
are polarized by constant fear and anxiety because the places and
people who should afford them the greatest protection (horne and
parents) turn out to be the most dangerous. (Jaffe, Wolfe & Wilson,
supra, at pp. 625-629.)
Children exposed to their father's abuse of their mother may
exhibit a range of internalizing and externalizing emotional and
behavioral problems. These symptoms continue into adolescence.
Aside from the more dramatic or visible symptoms of .being
exposed to violence, children may also exhibit more subtle signs of
this trauma that are not apparent from traditional assessment and
interview data. For example children who are exposed to parental
18
violence tend to hold beliefs that violence is an appropriate
method in trying to resolve conflicts, especially in the context of
an intimate relationship. (Jaffe, supra, at p. 22.) Many children
see physical aggression as appropriate in gaining respect or
control in a relationship, and excusable if a perpetrator is
drinking, or if a victim has supposedly done something to "provoke"
him (i.e., they think the father's view of the violence was
justified because the house was messy or dinner not ready on time) .
Additionally, children tend to blame themselves over time for
the violence. (Jaffe, supra, at p. 22.) They often feel that it is
their duty to protect their mother or defuse their father's anger.
They may feel that if they were perfect in their own horne their
parents wouldn't fight over them and cause more violence. This
pronounced sense of personal responsibility begins at an early age
and can last into adulthood. Obviously these symptoms, as well as
the previously mentioned ones, impede children's development, their
academic and community involvement, and their sense of personal
competence.
Many children may feel so responsible for their mother's
safety that they adjust their own lives in order to protect their
mother. (Jaffe, supra, at p. 22.) Some children refuse to go to
school and later receive the diagnosis of "school phobic" for this
reason. Other children may go to school and present somatic
concerns such as headaches and stomach pains so that they can
return home to their mothers.
In some circumstances, mothers do
not discourage this behavior because of their own isolation,
19
depression and inability to set any limits for their children.
Adolescents who have been exposed to violence, develop their
own coping strategies to deal with trauma. At an adaptive level,
with extended family or community supports, these young persons may
try to separate and individuate from the family problems and seek
more independent living and school-vocational pursuits.
Unfortunately, adolescents do not have adequate skills and
social supports in place. These adolescents may attempt to cope
through drug and alcohol abuse, or by running away to potentially
more dangerous environments (e.g., the streets).
p. 22.) Often, they become involved in
(Jaffe, supra, at
abusive dating
relationships. Adolescent boys who have been exposed to violence
are more likely to be abusive, and girls who have been exposed to
violence are less likely to question dating violence. Many of
these adolescents do not even consider that this violent behavior
is criminal in nature and could lead to sanctions by the court
system. (Jaffe, supra, at p. 22.)
C. NEUROBIOLOGICAL CHANGES AND THE CYCLE OF DOMESTIC VIOLENCE
Children neurobiologically adapt to violence exhibiting
measurable changes in the activity of their brainstems as a result
of chronic traumatic stress in violent homes. However, the very
neurobiological adapters which allow the child to survive violence
may, as the child grows older, result in an increased to
be violent. (Perry, "Incubated in Terror: Neurodeveloptnental
Factors in the 'Cycle of Violence'", in Osofsky, Children in a
Violent Society (1997) Guilford, Chap 2., pp. 124-149.)
20
Thus, living with a perpetrator of domestic violence makes it more
likely that those children will grow up to be violent themselves.
In fact, in 14 out of 16 studies, witnessing violence between one's
parents or caretakers is a more consistent predictor of future
violence than being the victims of abuse. (Hotaling and Sugarman,
An Analysis of Husband and Wife Violence: The Current State of
Knowledge (1986) Violence and Victims, 11, pp. 101-124.)
The long-term impact of being exposed to domestic violence is
most apparent from retrospective studies of male perpetrators of
violence and female survivors of violence in adult relationships.
The majority of abusive husbands have grown up in families where
they were exposed to their father's abuse of their mothers. The
landmark studies in this field suggest that sons of severe
batterers have wife abuse rates at 10 times the level of sons of
non-violent fathers. (Jaffe, supra, at pp. 21-22.) Women are less
likely to seek assistance when they are abused if they have been
exposed to violence in their family of origin. (Gelles & Strauss.
supra, at p. 18-20i Walker. Psychology and Violence Against Women
(1989) Am. Psychol. 44 (4), pp. 695-702.)
Several important issues and cautions need to be raised about
the research on children who have been exposed to violence.
Although being exposed to violence is an important factor, it
rarely happens in isolation from other stressors in a child's life
(e.g., repeated separations and disruptions, financial hardships,
lack of adequate housing or shelter). In many circumstances a
child may personally experience several forms of violence
21
themselves aside from being exposed to their mother's
victimization. The most conservative estimates suggest at least a
minimum 30% overlap between wife assault and physical child abuse,
and some studies and recent reviews have estimated an overlap up to
70%. (Jaffe, supra, at pp. 22-23.)
As outlined in the next section, violence does not end with
separation. Although the physical violence may terminate, the
ongoing issues of abuse of power and control may get played out
through a custody dispute and compromise the children's emotional
and behavioral adjustment.
22
III. FEAR OF LOSING CUSTODY OFTEN TRAPS BATTERED SPOUSES
Children are a central focus in decisions battered spouses
make about leaving the batterer or staying trapped in an abusive
relationship.
Battered women often cite the children as a reason to remain
with their spouse, in addition to other factors, such as fear,
economic dependency, self-blame, and lack of community support.
(Hilton. Battered women's concerns about their children witnessing
wife assault (1992) J. of Interpersonal Violence 7, pp. 77-86.)
They may be financially dependent on the batterer and may also want
the presence of a father, albeit a poor role model. They may also
fear losing the children, as many batterers threaten their partners
with taking away the children, and with proving her to be an
"unfit" mother.
These fears are well-founded since some research suggests that
perpetrators of domestic violence actually have a good chance of
convincing judges that they should have custody. (Zorza, Woman
battering: a major cause of homelessness (1991) Clearinghouse
Review, 25 pp. 421-429.) Sometimes battered spouses are deprived
economically to the point of being left homeless. On the other
hand, some battered women may decide to leave if they start to
recognize the impact the violence has on their children. Most
often, this decision happens after an incident of direct physical
or sexual abuse of the children, or when the battered spouse starts
to recognize the impact that exposure to the violence has on their
children. (Hilton, supra, at pp. 77-86.)
23
The research on children of divorce and that of children
exposed to domestic violence has developed as two separate
branches, which often leads to conflicting advice for battered
spouses.
The general literature on the impact of divorce stresses the
negative influence of conflict on children and the positive
influence of a co-parenting relationship where the children
maintain an ongoing, supportive relationship with both parents.
This is often true for nonviolent families. In reality, though,
contested custody cases often represent a higher level of violence
compared to the general population of divorcing adults. (Johnston
& Campbell. Parent-child relationship in domestic violence families
disputing custody (1993) Fam. Concil. Courts Rev. 31 pp. 282-298.)
When domestic violence has been present, a co-parenting
relationship and the impact of the conflict on the children often
represents a negative influence on the children. Many battered
spouses are placed in a situation where they are advised to promote
a relationship and set aside their past conflicts with an ex-spouse
who may be a danger to themselves and their children. If they do
not comply, they may be deemed "unfriendly or unfit parents" and
they can lose custody to an abusive parent. ( Zorza. 'Friendly
parent' provisions in custody determinations. (1992) Clearinghouse
Review 26 pp. 921-925.)
One of the most important issues that often goes unrecognized
by many legal and mental health professionals is that the violence
does not end with separation. Many children of battered spouses
24
find their experiences to be the opposite.
A large scale study of children of battered women in shelters
in California showed that separation tends to lead to an escalation
of violence and a greater danger for the safety of their mother.
(Jaffe, supra, at p. 24.) It is estrangement, not argument, that
begets the worst violence as a majority of spousal murders happen
after the woman leaves (deBecker, supra, at p. 184.) In fact, many
courts promote unsupervised visitation orders, and this may give
abusive spouses an ongoing opportunity to expose children to
violence or threats of violence. Recent clinical analysis in
Canada points to the ongoing psychological abuse whereby children
become pawns in custody battles in order both to punish and devalue
their mother and to try to rewrite the history of abuse and
parenting. (Jaffe, supra, at p. 24.)
Paradoxically,
reported because
women may not be believed when violence
they are seen as exaggerating incidents
is
of
violence as a way of manipulating the courts. Many of these women
who suffer post traumatic stress disorder have been labelled as
histrionic or worse. For example, a recent article discussed a
supposed "Malicious Mother Syndrome" in divorce as an "explanation"
as to why some women hold animosity toward their former husbands,
attempt to blame their ex-husbands for all the problems by accusing
them of various behaviors, and attempt to not allow the fathers to
see the children. (Jaffe, supra, at p. 24.)
The American Psychological Association Presidential Task Force
on Violence and the Family (1996) recently summarized the
25
literature in this area, and.expressed concerns about the labelling
and pathologizing of battered women in divorce and custody cases.
When such labelling occurs, men's violence may be minimized as only
an emotional reaction to the separation. (American Psychological
Association, Issues and Dilemmas in Family Violence (1996) American
Psychological Association Presidential Task Force on Violence and
the Family, pp. 13-15.)
26
IV. DOMESTIC VIOLENCE SHOULD BE A PRIMARY CONSIDERATION IN CHILD
CUSTODY DECISIONS
Domestic violence also plays a significant part in many
custody disputes and should be a primary consideration in questions
of both best interests and detriment to children.
Jaffe contends that the abusive parent discovers that, post
marriage, the most effective way to hurt or destroy the other
parent is through emotional or psychological abuse utilizing the
domestic courts. He notes that children in crisis who openly
disclose the violence and trauma learn to be silent - disclosure
just angers the person with the most power and may have direct and
indirect repercussions for them and their mother upon visitation.
For many children, their mother has modeled silence in the
relationship, and this pattern is difficult to change, especially
if their safety is further jeopardized by any disclosure. (Jaffe,
supra, at p. 27.)
Dr. Jaffe concludes that the generalized notions of joint
custody and two equal .parents cooperatively planning for their
children's future is impossible for many couples when there is
family violence. In fact, he believes that for battered spouses,
this notion of shared custody may perpetuate the violence and
abusive power and control in family relationships.
A. PROTECTING CHILDREN FROM HARM
In cases involving documented domestic violence, it is 'in the
best interests of children to reside with a non-violent caretaker,
rather than a batterer.
27
In determining the best interests of the child, California
Family Code (3011)
6
requires that the Court consider any history
of abuse by one parent against the child or against the other
parent.
California is not alone in including domestic violence as a
factor to be considered in determining the best interests of a
child. In fact, even when a dispute is between a parent and a non-
parent, 35 states have statutes that require courts to consider
evidence of domestic violence or abuse of a spouse when making
child custody or visitation determination.
Before the court reaches the best interests test, the non-
parent seeking custody must prove detriment if the child is placed
with the parent, "by clear and convincing evidence". (Guardianship
of Stephen G. (1995) 40 Cal. App.4th. 1418.) Clear and convincing
is described as nothing less than evidence that "is so clear as to
leave no substantial doubt. It must be sufficiently strong to
6
Family Code section 3011 states in part:
"In making a determination of the best interest of the child in a
proceeding described in section 3021, the court shall, among any
other factors it finds relevant, consider all of the following:
a) The health, safety, and welfare of the child, b)Any history of
abuse by a parent, or any other person seeking custody against any
of the following: 1) Any child to whom he or she is related by
blood or affinity or with whom he or she has had a caretaking
relationship, no matter how temporary. 2) The other parent. 3) A
parent, current spouse, or cohabitant, of the parent or person
seeking custody, or a person with whom the parent or person seeking
custody has a dating or engagement relationship. (Emphasis a9ded.)
As a pre-requisite to the consideration of allegations of
abuse, the court may require substantial independent corroboration
including, but not limited to, written reports by law enforcement
agencies ... As used in this subdivision, 'abuse against a child'
means 'child abuse' as defined in Section 11165.6 of the Penal Code
and abuse against any of the other persons described in Section
6203 of the Family Code."
28
command an unhesitating assent in every reasonable mind". (In re
David C. (1984) 154 Cal. App. 3d. 1189, 1208.)
The definition of detriment is fairly broad and includes more
than direct physical abuse between parent and child. In re Heather
~ (1996) 52 Cal. App. 4th 183, illustrates the point. There, the
trial court denied custody to an ordained minister who beat his
wife. The father's history of abuse included choking, hitting and
threats to kill his wife. The children, twin 5-year old daughters,
had not been beaten, but their stepmother, Ramona, the beating
victim, said they were in the room during several of the incidents
and once accompanied her to the hospital.
In the case, the father, identified as Harold A., pleaded no
contest to spousal abuse in September, 1994, an incident which left
Ramona a head fracture which required hospitalization. This
beating did not occur in front of the children as they were asleep
in another part of the house. After the incident, Los Angeles
County social workers tried to remove the children from his care.
However, during a 1995 custody hearing, the minister denied hitting
his wife and said he entered the plea only to "preserve the
family". (In re Heather A., supra, at p. 317.)
Nevertheless, the Superior Court judge denied custody to both
the father and stepmother, and ordered the children placed in
foster care. The ruling was upheld by the Second District Court of
Appeal. In addition to possible physical injury the girls f a ~ e d in
a violent household, they could suffer "lasting psychological
damage" if exposed to the abuse of their stepmother, the Appellate
29
Court said, underscoring t_he special risk presented by family
violence:
11
It is clear to this Court that domestic violence in the
household where children are living is neglect; it is failure
to protect (the twins) from substantial risk of encountering
the violence and suffering serious physical harm or illness
from it. Such neglect causes the risk.
11
(In re Heather A.,
supra, at pp. 315-322.)
As to current and future detriment, the Court found that
domestic violence in the same household where children were living
is "secondary abuse"
7
of the children. (In re Heather A., supra,
at p. 3 OS.)
Despite the findings of Jaffe and others, and this recent
decision which underscores special risks to children from living
with a batterer, research indicates that custody evaluators seldom
consider domestic violence in making child custody recommendations.
A survey of psychologists from 39 states who conducted custody
evaluations amazingly indicates that domestic violence was not
considered a major factor in making custody determinations except
as a possible rationalization for not recommending joint custody.
(Ackerman & Ackerman, "Child Custody Evaluation Practices: A 1996
Survey of Psychologists" (1996) Fam. L.Q. 30(3), p. 565.) Even
7
The concept of
11
secondary abuse
11
was recognized in In re Jon
~ w h e r e a father questioned the suitability of the minor's mother
to be a custodial parent. The Court found that there had been
ongoing domestic violence between the minor's parents which must
inevitably have affected the child even though he had not been
physically injured. (In re Jon N., supra at pp. 156, 161.)
30
then, it was seldom listed as a determining factor. When the
psychologists were asked for three to five reasons that would most
support not recommending joint custody, family/domestic violence
was the second least likely reason. Of more concern was the
finding that over three quarters of the custody evaluators
recommend denying sole or joint custody to a parent who "alienates
the child from the other parent by negatively interpreting the
other parent's behavior". (Ackerman & Ackerman, supra, at p. 565.)
This latter finding indicates that custody evaluators may be
more likely to blame the parent seen as more hostile and
uncooperative and, thus, deny the parent sole or joint custody even
in cases involving domestic violence.
B. BEST INTEREST AND DOMESTIC VIOLENCE
In custody cases, Family Courts have a long history of
examining a wide range of parents' behavior as it relates to the
children's best interest. In cases of domestic violence, the court
should examine a wide spectrum of parents' behavior, not just
whether they have been convicted of beating a spouse as violence is
rarely ever isolated.
However, judges are often faced with another paradox inherent
in battering relationships. On one hand, courts are often
presented with evidence showing special risks children face when
they are placed in the custody of an abuser - risks, not only to
their physical safety, but also to their emotional and
developmental needs. On the other hand, jurists are told by court-
appointed experts - who may, as the Ackerman study points out,
31
downplay domestic violence - that the children in a given case have
a ''close bond" with a parent who has committed domestic violence.
In fact, the children may even say they "just want to go home".
The apparent closeness between a perpetrator of domestic
violence and their children, whether battered or not, is explained
by the concept of "traumatic bonding".
8
These intermittent
maltreatment patterns have been found to produce strong emotional
attachments and is the very reason many battered spouses stay in
abusive relationships (Dutton, supra, at p. 191.) Similarly,
children may also appear emotionally close to the very parent who
is the most dangerous because they are afraid of them. But, as
Perry points out, living with domestic violence only makes it more
likely the child will repeat the cycle of violence themselves.
(Perry, supra, at p. 124-149.) In fact, children who grow up in
abusive homes are more at risk for committing violence themselves,
both within and outside their own families (Dutton, supra, at p.
ix.)
C. SPOUSAL MURDER AND DETRIMENT TO CHILDREN
Psychological detriment to children by the murder of a parent
is indisputable and irreparable in terms of their loss. When
addressing this question of detriment, the court should examine the
"totality of the evidence" related to current and future harm to
the children. (Guardianship of Phillip B, supra, at pp. 407,421.)
8
"Traumatic bonding" is the development of strong emotional
ties between two persons, with one person intermittently harassing,
beating, threatening, abusing or intimidating the other. (Dutton,
supra, at p. 190)"
32
A majority of female homicide victims are killed by their
partners, ex-partners, or boyfriends. (Jaffe, supra, at p. 20;
Gelles and Strauss, supra, at p. 18.) However, in domestic
disputes, there are numerous pre-incident indicators associated
with spousal violence and murder. deBecker, who grew up in a
family with domestic violence, described these "pre-incident"
behaviors as signals. Noting that they will not be present in
every case, he cautions that if a situation has several of these
indicators, there is reason for concern. (deBecker, supra, at p.
174.)
1) The woman has intuitive feelings that she is at risk.
2) At the inception of the relationship, the man accelerated
the pace, prematurely placing on the agenda such things
as commitment, living together, and marriage.
3) He resolves conflict with intimidation, bullying, and
violence.
4) He is verbally abusive.
5) He uses threats and intimidation as instruments of
control or abuse. This includes threats to harm
physically, to defame, to embarrass, to restrict freedom,
to disclose secrets, to cut off support, to abandon, and
to commit suicide.
6) He breaks or strikes things in anger. He uses symbolic
violence (tearing a wedding photo, marring a face in a
photo, etc.).
7) He has battered in prior relationships.
8) He uses alcohol or drugs with adverse affects (memory
loss, hostility, cruelty).
9) He cites alcohol or drugs as an excuse or explanation for
hostile or violent conduct ("That was the booze talking,
not me: I got so drunk I was crazy").
10) His history includes police encounters for behavioral
offenses (threats, stalking, assault, battery).
11) There has been more than one incident of violent behavior
(including vandalism, breaking things, throwing things).
12) He uses money to control the activities, and
behavior of his wife/partner.
13) He becomes jealous of anyone or anything that takes her
time away from the relationship; he keeps her on a "tight
leash", requires her to account for her time.
14) He refuses to accept rejection.
15) He expects the relationship to go on forever, perhaps
33
using phrases like "together for life", "always", "no
matter what."
16) He projects extreme emotions onto others (hate, love,
jealousy, commitment) even when there is no evidence that
would lead a reasonable person to perceive them.
17) He minimizes incidents of abuse.
18) He spends a disproportionate amount of time talking about
his wife/partner and derives much of his identity from
being her husband, lover, etc.
19) He tries to enlist his wife's friends or relatives in a
campaign to keep or recover the relationship.
20) He has inappropriately surveiled or followed his
wife/partner.
21) He believes others are out to get him. He believes that
those around his wife/partner dislike him and encourage
her to leave.
22) He resists change and is described as inflexible,
unwilling to compromise.
23) He identifies with or compares himself to violent people
in films, news stories, fiction, or history. He
characterizes the violence of others as justified.
24) He suffers mood swings or is sullen, angry, or depressed.
25) He consistently blames others for problems of his own
making; he refuses to take responsibility for the results
of his actions.
26) He refers to weapons as instruments of power, control, or
revenge.
27) Weapons are a substantial part of his persona: he has a
gun or he talks about, jokes about, reads about, or
collects weapons.
28) He uses "male privilege" as a justification for his
conduct (treats her like a servant, makes all the big
decisions, acts like the "master of the house".
29) He experienced or witnesses violence as a child.
30) His wife/partner fears he will injure or kill her. She
has discussed this with other or has made plans to be
carried out in the event of her death (e.g., designating
someone to care for children). (deBecker, supra, at p.
175.)
9
9
The above list of behaviors has been used by deBecker to
develop a computer program, MOSAIC-20, that assesses the deta.ils of
abused spouse's situation as they report it to police (deBecker,
supra, at p. 191). MOSAIC-20 is now used in the Los Angeles County
Sheriff's Department, the Los Angeles County District Attorney's
office, and other police departments across the country, to flag
cases in which the danger of homicide is highest. (deBecker, supra,
atp. 313-314.)
34
In the case at bench, Judge Nancy Weiben Stock heard evidence
of a pattern of domestic violence perpetrated by the father towards
the mother which is consistent with the above list of indicators
associated with spousal violence and murder. These behaviors
included, but were not limited to, verbal and physical abuse,
arrest of the father for domestic violence, slapping incidents on
at least three separate occasions, as well as statements by the
mother to dispatch police in an incident of alleged violence. (In
re Sydney and Justin S., supra, at pp. 6-7.) Nevertheless, the
trial court declined to hear the totality of the evidence on
whether the father was responsible for the death of the mother,
stating this "would not be in the best interests of the children"
because of considerable risk of further damaging publicity and
delays in the custody decision. (In re Sydney and Justin S., supra,
at pp . 9 -1 o . )
Amici believe the judge's decision inappropriately discounted
concerns regarding the children's safety in favor of less important
considerations such as adverse publicity and delays in the custody
decision.
35
V. THE BEST INTERESTS OF CHILDREN ARE MORE IMPORTANT THAN THOSE
OF BIOLOGICAL PARENTS
Children
1
s safety and well-being should be the court
1
s primary
concern above the previously assumed best interests of the
biological parents.
In determination of custody
1
the best interest standard is
generally used with the underlying notion that there are two fit
biological (legal) parents. In parent/non-parent disputes/ the
detriment standard is used to counterbalance the biological parents
greater legal right to the child.
But
1
if a parent was an admitted batterer and had been found
to have caused the death of the other spouse/ should the Court
automatically grant custody to that surviving parent
1
given that
detriment had already occurred to the children due to the loss of
a parent? Should the Court look at a wide range of domestic
violent behaviors of that surviving parent
1
across time
1
before
making a determination of what is in the children
1
s best interests?
Or
1
in the alternative/ should the Court only be concerned if the
surviving spouse had been convicted of spousal abuse/ ignoring the
fact that violence is rarely ever isolated? Should the Court
understand that grieving children may also be traumatically bonded
and express a preference to live with the surviving parent/ even if
he is a batterer?
Whose best interests are primary: the children or the
surviving biological parent who may be a perpetrator of domestic
violence?
36
The children
1
S best interests are primary and keeping them
from harm
1
s way supersedes the best interests of biological parents
who have a history of domestic violence.
Therefore
1
amici makes
the same presumption clinically as has the National Council &
Family Court Judges in their 1994 Model Code on Family Violence:
There should be a rebuttable presumption against sole custody or
joint custody for abusive partners even if they have never directly
abused their children.
10
As demonstrated in this brief/ domestic violence is harmful to
children, whether they are abused or not.
Therefore, domestic
violence is presumed to be detrimental to children as well as not
be in their best interests. To this end
1
the safety and well-being
of children should be elevated above all best interest factors in
those disputed custody cases where there has been a finding of
10
Regarding custody
1
the Model Code states: (Section 401) "In
every proceeding where there is/ at least
1
at issue a dispute as to
custody of a child
1
a determination by the court that domestic or
family violence has occurred, raises a rebuttable presumption that
is detrimental to the child and not in the best interests of the
child to be placed in sole custody, joint legal custody, or joint
physical custody with a perpetrator of family violence." (M::del
Code, supra, at p. 33.)
Given this rebuttable presumption/ the Model Code (Section
402) lists factors that should be utilized in determining custody
and visitation when domestic violence has occurred.
"In addition to the other factors that a court must consider
in the proceeding in which the custody of a child or visitation by
a parent is at issue in which the Court has made a finding of
domestic or family violence:
a) The Court shall consider as primary the safety and well
being of the child and of the parent who is
the victim of domestic or family violence/
b) The Court shall consider the perpetrator/ s history of
causing physical harm, bodily injury/ assault or causing
reasonable fear of physical harm/ bodily injury or
assault to another person. (Model Code/ supra at p. 33)"
37
abuse by one parent of the other.
A finding of domestic violence by a parent presumes detriment
to the children if they reside with a batterer as a primary
custodian. (In re Heather A., supra, at p. 317.)
This finding
compels the Court to consider, by history, both the acts and the
patterns of physical abuse inflicted by the abuser on other
persons, not limited to children and the abused parent, as well as
the fear of physical harm reasonably engendered by this behavior.
Research findings discussed in this brief indicate that
domestic violence is rarely ever isolated. Thus, amici contend
that discrete acts of abuse do not accurately convey the risk of
continuing violence, the likely severity of future abuse, or the
magnitude of fear precipitated by the composite picture of violent
conduct.
By shielding children from future detriment through a
rebuttable presumption, the court places their best interests as
primary. This prevents the perpetrator of domestic violence from
benefiting from his violent, abusive conduct in cases such as
spousal murder, where custody of the children may be awarded to the
surviving parent.
In addition to the National Council of Juvenile and Family
Court Judges, the California legislature gave the issue of
children's safety top priority in child custody decision making.
11
11
Effective January 1, 1998, Assembly Bill 200, (Kuehl) amends
Sections 3004, 3011, 3020, 3161, and 3162 of the Family Code. The
Legislative Counsel's Digest states: "It is also the policy of this
state that the health, safety, and welfare of children shall be the
court's primary concern in determining best interest of children
38
Further, in 1994, the American Bar Association recommended that
children's best interests be elevated above those of biological
parents who are batterers.u
when making orders regarding custody or visitation, that
perpetration of child abuse or domestic violence in a household
where a child resides is detrimental to a child, and where this
policy and the existing policy are in conflict, an order for
custody and visitation should be made that ensures the health,
safety, and welfare of the child and the safety of all family
members." (California Legislature, Assembly Bill 200 (1997)
paragraph 2)
l
2
The ABA recommended:" ... that custody not be awarded, in whole
or in part, to a parent with a history of inflicting domestic
violence, that visitation be awarded to such parent only if the
safety and well-being of the abused parent and children can be
protected, and that all awards of visitation incorporate explicit
protections for the child and the abused parent (ABA Center on
Children and the Law. The Impact of Domestic Violence on Children:
A Report to the President of the American Bar Association.
Washington, D.C., p. 15.)
39
VI. CONCLUSION
Children are at great risk living with a perpetrator of
domestic violence. Whether they have been abused or not, they
experience the same psychological fears and may be traumatically
bonded to the batterer, even expressing a preference to live with
them. In the case of spousal murder, these children may suffer
11
secondary abuse
11
, adopting a pattern of emotional compliance
because they may fear the penalty for misbehaving could be physical
harm. However, the greatest future harm children face living with
a batterer is that they will live to experience the surviving
parent beat another partner, recycling the climate of fear that is
so detrimental to children. Moreover, if they remain with a
batterer, the same neurobiological adaptations that helps them
psychologically survive the traumas associated with domestic
violence make it more likely they will grow up to be violent
themselves.
To prevent future detriment, children's safety and well being
should be elevated above the previously assumed best interests of
biological parents. And, what is most needed to insure children's
protection in custody cases where there has been domestic violence
is a new commitment to prioritize children's safety as an essential
cornerstone of the justice system. If the justice system cannot
offer these children a vision of not being with a batterer, there
40
can be no dream of a safe future for them, because the cycle of
violence will continue.
Dated: December 1 1997
41
Respectfully Submitted,
Stephen Temko, Esq.
SBN 67785
Paul Mones, Esq.
SBN 128329
Attorneys for Amici
DECLARATION OF SERVICE BY MAIL
I, Stephen Temko, declare:
I am over 18 years of age, and not a party to the within
cause; my business address is 1666 Garnet NO. 502, San Diego,
92109. I served one copy of the attached:
AMICUS CURIAE BRIEF OF
STEPHEN E. DOYNE, Ph.D., J REID MELOY, Ph.D., DON DUTTON, Ph.D.,
PETER JAFFE, Ph.D., PROFESSOR JANET BOWERMASTER, THE PUBLIC LAW
CENTER, THE CALIFORNIA WOMEN'S LAW CENTER AND THE CALIFORNIA
ALLIANCE AGAINST DOMESTIC VIOLENCE
on each of the following, by placing same in an envelope (or
envelopes addressed (respectively) as follows:
Bernie Leckie, Esq.
Meserve, Mumper & Hughes
2301 Dupont Drive
Suite 410
Irvine, CA 92612
Attorney for Respondent
Kimberly Knill, Esq.
1461 Glenneyre
Suite D
Laguna Beach, CA 92651
fax 714 497 9637
tel: 714 497 8313
Attorney for Appellant
Court of Appeal
Fourth Appellate District
Division Three
925 Spurgion Street
Santa Ana, CA 92701
714 558 6779
0+4
Each envelope was then, on December 1997 sealed and
deposited in the United States Mail at San Diego, California,
The county in which I am employed, with the postage thereon
fully prepaid. I declare under penalty of perjury that the
foregoing is true and correct.
Executed on December ___ , 1997 at San Diego, California.
STEPHEN TEMKO
1