A significant challenge for the family courts in evaluating custody arrangements is the issue of undocumented domestic violence. Many families with histories of domestic violence have no objective documentation of the abuse by, for example, witnesses, police reports, or medical reports.
This article discusses the phenomenon that occurs when two parents, who have experienced Interpersonal Violence (IPV) in a marriage or non-marital relationship, are ordered by the Family Court to share a joint physical custody parenting plan after the parents separate, due to the absence of documentation of such abuse. The term “Intimate Partner Violence” describes physical, sexual or psychological harm by a current or former partner or spouse. This type of violence can occur among heterosexual or same-sex couples and does not require sexual intimacy.
Undocumented IPV is defined as familial, physical, verbal, sexual or emotional abuse that has not been documented by witnesses, police reports, medical records or other formal records. Co-parenting is defined as the ongoing involvement of both parents with each other on issues concerning their children after a divorce.
A history of IPV between parents seriously compromises critical aspects of co-parenting because of the high likelihood that conflict will continue between the parents post-separation. Parental conflict exposes children to disagreements, tension and inconsistency. Conflicts between the parents can have long-lasting results for their children. In nearly 25 percent of the children studied in Judith Wallerstein’s groundbreaking research, memories of violent scenes between their parents were vivid and detailed.
Wallerstein’s research found that the fear and sense of hopelessness experienced by a child during periods of IPV by his/her parent(s) were fully retained in the child’s adult consciousness. This article cites research which shows that adverse childhood experiences usually lead to significant detrimental long-term effects.
Family Code §3044 states that when the court has made a finding of domestic violence “within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.” But the protections of Family Code §3044 give a false sense that joint custody will not be awarded to families with a history of domestic violence, because problems occur for many families when there is no documentation of domestic violence.
Courts are bound by rules of evidence to base their orders on facts. But very often, the facts do not support that there has been a history of IPV because the victimized parent does not report the abuse, and may actively hide it. Without documentation of IPV, the courts have a difficult and challenging task of making a finding of domestic violence.
Thus, a serious problem develops when there is no or very little documentation of abuse because then the couple’s history of abuse is not taken into consideration, and orders are frequently made for joint custody. This leads to an unhealthy situation for the victimized parent and his/her children.
Rhonda Barovsky, LCSW, PsyD, has been working within the field of family law since 1992. She worked as a mediator, recommending counselor at CCC Family Court Services, she was the director of the SF FCS, and has been in private practice for the last 12 years. She recently completed her Doctorate in Forensic Psychology. She can be reached at 925-944-1676.
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