Differentiating Types of Domestic Violence: Implications for Child Custody

Abstract

Child custody determinations are based on the fiction that families with a history of domestic violence are all alike. However, researchers, scholars, and practitioners increasingly agree that families experience (and children are exposed to) different types of domestic violence. These types of violence involve distinctly different phenomena - they are not simply separate points along a single continuum of abuse. This article examines child custody determinations through the lens of a domestic violence typology. The resulting analysis (1) reconciles competing viewpoints and contradictory evidence about domestic violence; (2) matches families with appropriate child custody court procedures and services such as parent education, mediation, supervised visitation and parent coordination; and (3) exposes serious deficiencies in current domestic violence child custody statutes.

Application of the typology leads to the conclusion that child custody courts could more effectively protect children through identification and consideration of the type of domestic violence experienced by the family. To this end, three significant procedural and substantive law reforms are recommended. First, courts should adopt Differentiated Case Management in order to identify cases involving domestic violence and to the extent possible, distinguish the type of violence experienced. Second, child custody court procedures and services should vary depending on the needs of the individual family and type of violence experienced. Under the current one-size-fits-all approach, some families are referred to procedures and services that are unsafe for them while other families, who could benefit from those very procedures and services, are discouraged from using them. Third, current domestic violence-related child custody statutes should be amended to include language that targets perpetrator patterns of coercive control.. Current statutes are not drawn with sufficient precision to adequately protect children.

Keywords: child custody, domestic violence, domestic abuse, family violence, parent education, mediation, supervised visitation, parent coordination, best interests, friendly parent, rebuttable presumption, Differentiated Case Management, coercive control, Intimate Terrorism, Situational Couple Violence