Don’t Create Custody Laws That Facilitate Abuse

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35en_vio ... Violence

Don’t Create Custody Laws That Facilitate Abuse

By Jack C. Straton, Ph.D.

Department of Physics
Portland State University
Portland, OR

Joint Custody laws have become a rallying point in our society for those men who are having a difficult time maintaining their control over women. Their argument that joint custody is egalitarian totally ignores the enormous reality of male violence. They propose powerful custodial incentives (coercion by the State) that will motivate women to stay with their abuser ("to make the marriage work") — that will take custody from women who cannot "cooperate" because they fear any contact with their husbands. Such laws would not only promote woman abuse but would also promote child abuse because some 70% of men who abuse women also abuse the children they have access to.

Half of all women in the United States will be battered by an intimate partner at some time in their lives., The violence is so severe that battering is the single most important context for serious injury to women in the U.S. Nearly one-third of all visits by women to emergency medical services are caused by battering. According to the FBI, over the last seven years 29.4% of all women murdered were killed by their husband or partner. This is reality.

So how does court-mandated joint custody fit into this reality? Like a knife sliding in to the hilt! "Friendly parent" provisions of joint custody presumptions, that award sole custody to the parent who "cooperated and facilitated the relationship between the child and the other parent," are particularly dangerous.

"Friendly parent" provisions guarantee a batterer frequent and continuing access to his victim. Such provisions force a woman who has been beaten by her partner to submit to further abuse during custodial exchanges or lose custody of her child to a terrorist. How likely is it that he will abuse her after separation? Two thirds to three fourths of the women who are battered are divorced or separated from their abusers at the time of the incident. In one study of spousal homicide, over half of the male defendants were separated from their victims.

What are the consequences to the child if an abused woman either leaves and loses custody or stays because of vindictive laws? A number of studies have reported rates at which men who abuse their wives also abuse their children ranging from 53%, to 82%. In the most extensive study to date, of 1000 battered women, Bowker and coworkers found that 70% of the children were also abused. They also noted that daughters of abused women are six and one-half times more likely to be sexually abused as girls from non-abused families.

Furthermore, Bowker found that as the severity of the wife abuse increased, so did the severity of the child abuse. While it is true that women will spank children, Bergman and coworkers determined that men are ten and one-half times more likely than women to inflict serious harm. They found that every known perpetrator of the death of a child was a father or father surrogate.

Joint Custody laws harm children in other ways. 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, thus inflicting the violence that is poverty on the child; clearly not a result "in the child’s best interests." "Friendly parent" provisions, that give a preference to the parent requesting joint custody when the alternative of sole custody is considered by the court, increase the effectiveness of this threat and the consequent impoverishment of children.

Joint custody also makes it easier for the non-primary-caretaking parent to interfere with needed and timely medical decisions by the primary-caretaker.

Because court mandated joint custody is unworkable for those parents who cannot cooperate, is unneeded by those parents who can cooperate, and creates unconscionable costs in pain and privation for children and mothers, this option for settling custody disputes is unacceptable.

Is there a gender-neutral presumption that does not automatically harm women and children? Yes, leaving children in the custody of the parent who has been the primary giver of care (the parent who most often prepares the meals, changes diapers and dresses and bathes the child, chauffeurs the child, monitors the child's health, and interacts with the child's friends and teachers), as in the "Primary Caretaker Parent Rule" of West Virginia.

Norway’s Kirstin Sandberg summarizes that this criterion "should only exceptionally result in a worse solution than if the other parent was chosen. . . . [This] 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."

Given that most primary caretakers now are women, is this criterion fair to men? The answer is that men as a group have the power to create a gender-neutral society in which we actually do perform as primary caretakers in 50% of families. Men as individuals have the power to set themselves up as primary caretaker in any given family. What is fair is for men to put up or hush up.

Until men choose to be equal partners in marriage, after divorce children would probably not spend as much time with their fathers as with their mothers under this criterion. What are the consequences of this for children? The Male Lobby claims that "fatherless homes are destroying America . . . [creating] poor education, gangs, crime, drugs, teen-age pregnancy, health problems, behavioral problems. . . ." They claim that "children from fatherless homes are five to six times more likely to live in poverty," but forget to name the father as responsible for the 30% drop in such a child’s household income after he leaves. It is also obvious that poverty itself, rather than the lack of an adult penis in the house that is the causal agent for the problems noted above.

Those who want to stop gang violence in Oregon should be aware that witnessing battering has been strongly linked to kids turning to crime. Studies by Pagelow, Jaffe et al., Davidson, Alessi and Hearn, Hilberman and Munson, and others have shown that children who witness woman abuse may experience severe mental and physical impairment, similar to Post-traumatic stress disorder (PTSD), and almost all children of battered women are witnesses. Hughes and Jaffe et al. have shown that children exposed to wife abuse often are fighting, rebelling, and unmotivated in school. Children who live in abusive homes are at higher risk of juvenile delinquency, including crimes such as burglary, arson, prostitution, running away, drug use, and assaults, according to the work of Walker, Heath et al., and Lewis et al. Long-term studies such as McCord’s have shown that ongoing marital violence in childhood is significantly predictive of perpetration of serious crimes in adulthood — assault, rape, kidnapping, and murder. Stark and Flitcraft have shown that boys who witness their father beating their mother are three times more likely to abuse their own wives. Sons of the most violent families have a wife beating rate that is 1000 times larger than of sons of non-violent fathers.

It is clear than children are harmed by living with abusive fathers. Are they hurt by not living with non-abusive fathers? A study done in 1987 by Furstenberg, Morgan, and Allison, found that children who had not seen their father in 5 years did significantly better than those who had spent 1 through 13 days with their father in the previous year. Another study by Zill found that the well-being of children following divorce is not related to father-child contact.

When men finally stop brutalizing women and children, I imagine that shared custodial arrangements will be possible. When men finally become equal partners in child care before divorce, shared custodial arrangements after divorce will be workable. But let us not pretend that they are necessary to the child’s well-being.

The primary caretaker criterion for awarding custody is the fairest and the most logical for the child. But perhaps we should entertain a simple wager: Award men an additional 1 percent of custody cases for each day in every three months that women and children in this country are absolutely free from male violence. Just imagine the society we would live in if men gained custody 100% of the time under this plan: Your grandmother laughing with her friends as they stroll through the neighborhood after dinner; your mother really relaxing at home with your father; you and your spouse being best of friends; your daughter free to spend late hours at mathematics or music at college; your grandson following the daycare worker around asking him "Why?" a thousand times. I would give much to see such a world.

Jack Straton earned a Bachelor of Fine Arts degree in photography from the University of Oregon in 1977, worked as a professional jazz drummer for three years, and then returned to the U of O in the 1980s to earn a doctorate in quantum theory. Both as a volunteer and professional diversity trainer over the past 18 years, he has presented several hundred workshops on ending sexual assault and racism. Jack founded Men Against Rape groups in Eugene, Oregon, Washington, D.C., and Manhattan, Kansas. He has published extensively in professional journals from his research in Quantum Scattering Theory, Gender Equity, and Diversity Training Methods. He has served as co-chair of the National Organization for Men Against Sexism (NOMAS) and, as coordinator of the NOMAS Task Group on Child Custody Issues, is recognized as one of the leading writers and speakers in the country with expertise on ethical and public policy issues related to the overlap between child custody, child abuse, and woman abuse. 


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