Speaking Up, Speaking Out...
Against Domestic Violence

An awareness and visibility project around issues of domestic violence in various communities.


Public Hearing Testimony: DV and child custody

This is from a white, heterosexual, woman with a Master's degree currently residing in Western New York. She submitted two pieces; this is the first. She gave (non-personal) testimony in Buffalo, NY on April 21, 2005 before the New York State Matrimonial Commission on the issue of child custody in domestic violence cases. (The full transcripts of all of the NYS Matrimonial Commission hearings from October '04 to May '05 can be found here.)

I reproduce her testimony in full.


JAN KURTH: Good afternoon. My name is Jan Kurth, and I'm just recovering from a little laryngitis, so please bear with me. I'm a noncustodial mother, a CASA-trained volunteer currently inactive due to time and employment constraints, a past member of the Battered Mothers Custody Conference that was organized out of a meeting held at Siena College last year. By profession, I'm an urban planner and grant writer with an undergraduate degree from Vassar College and Masters from SUNY Buffalo. Among the projects I am currently working on is a HUD Continuum of Care application for transitional housing that would serve homeless Domestic violence victims and their children. I am currently living in Chautauqua County, which is just to the south of Erie County, for those of you who are not too confident in your geography.

While I could discuss many aspects of the divorce process, I will limit my comments to the training of custody evaluators, the rise of joint custody and sole father custody and the problems that these raise for mothers and children, and the lack of accountability for various ethics violations.

Under Poor Training for Custody Evaluators.
Custody evaluators often have dubious training, as many parents have found out in New York State. In Chautauqua County one private evaluator -- evaluator was able to set up practice with nothing but a background in pastoral counseling. This often leads to professional and ethical problems, as in at least one documented case this same evaluator declined to contact one of the parents, in this case the mother, or seek any information from this parent -- from this parent before making a custody recommendation. Nevertheless, the judge in this case admitted this report into evidence and cited it in his final decision.

In addition to the general inadequacies of custody evaluators, there is often little training in domestic violence. Nationally, just four percent of mental health providers are estimated to have had sufficient DV training. As a result, evaluators are too frequently taken in by unproven and dangerous psychological theories, such as Richard Gardner's Parental Alienation Syndrome, PAS, and its many spinoffs. This theory asserts that in cases where a child shows fear or reluctance around one parent, typically assumed to be the father, it is generally instigated by or the fault of the other parent, typically assumed to be the mother. In what are purported to be "severe" cases it is recommended that custody be transferred from the so-called "alienating" parent to the so-called "victim" parent. While this theory sometimes gives lip service to domestic violence or child abuse as a cause for the children's behavior, this very real possibility is seldom explored and in practice. In addition, there's tremendous gender bias in how the theory is applied. Women are often accused of PAS, but there are very few cases, if any, where a mother has successfully charged PAS against the father. In addition, PAS theory does not acknowledge that estranging tactics are very much a part of the modus operandi of the abuser. In other words, estrangement tactics are not so much a discrete psychological syndrome suddenly arising in mothers at the time of the divorce, as a common response of the abusive personality.

Again, in Chautauqua County, one mother lost custody despite the fact that the court-appointed evaluator determined that the father displayed, quote, alienating type behavior and had attempted to obstruct contact. Apparently this kind of behavior was only unacceptable in mothers, as the same evaluator, speaking at a Fathers Rights summit, spoke at some length on the harms associated with "maternal gatekeeping", end quote, which is apparently another term for blaming mothers who allegedly restrict the children's access to their fathers, even if there are concerns related to domestic violence or child abuse. The presentation made no acknowledgment of the fact that "gatekeeping" can be a normal, healthy, and, indeed, expected behavior for mothers or parents in general, sometimes called taking responsibility for one's children and keeping them from harm's way. And, of course, there was no acknowledgment, especially in this setting, that fathers, especially abusive fathers, can be guilty of blocking access to the children or attempting to alienate the children from the mother, especially as more fathers gain custody.

And then regarding the problems regarding joint custody and father custody. As some speakers have mentioned earlier, it is not uncommon for a father with a history of domestic violence or abuse to gain joint custody or even sole custody. According to several studies, fathers, even abusive fathers, are successful in some 70 percent of contested child custody cases. The results can be tragic. Earlier this year in Orange County a seven-year-old girl was allegedly stabbed to death by her father, who had sole custody. The father had gained custody despite two Orders of Protection against him by two different women for domestic violence, one was the girl's mother, and many illegal drug issues. More recently, a three-year-old Buffalo child was murdered by a father with sole custody. While it is reprehensible that any parent would murder his or her own child, it is especially repugnant that a child would have been ordered into the care of such a parent by the courts, especially with clear warning signs. Even in cases where the abuser is not granted full custody there can be problems. Two years ago during a visitation exchange in Chautauqua County a woman was kidnapped by the father of her children, driven across state lines and assaulted. In this case, she had an Order of Protection, but was apparently still required to facilitate visitation. Last year, a Chautauqua County mother was unsuccessful in her attempts to gain sole custody of her minor daughter, despite the fact that the child's birth father was a registered sex offender who had served jail time for molesting an older stepdaughter. As a result of her fears, this woman ultimately returned to her battering partner, a trend which is certainly worrisome.

In another case, a custodial mother in Chautauqua County was told she must continue to allow the father to visit their preschool-aged child, even while an active sexual abuse charge was being investigated. Appointing the mother or current girlfriend of an alleged abuser to serve as a monitor appears to be a common practice, though of dubious value to the safety of the child, given the enabling behavior and denial common to those who choose to live with and support these individuals.

These are not isolated incidents. Domestic violence agencies in Chautauqua County, such as the Agnes Home, have all reported an alarming number of clients who have faced custodial challenges and even lost custody to an abuser. Some have lost due to a poor understanding of domestic violence on the part of judges and the courts. Especially the myth that "women do it too" and in the same numbers. As a result, our courts have sometimes condemned both parents for domestic violence behavior, even if the woman just got out of Intensive Care and the man has a few scratches. These assumptions tend to ignore the severity of the violence, the psychological aspects of domestic violence, and the need for the abuser to control or terrorize the victim.
One person, who used to administer a program for battering men, reported to me that one client in the program had threatened to kill his ex within the program. The same man had been granted custody of their young daughter by the courts. Once mothers lose custody, there appears to be very different standards applied to visitation.

One Chautauqua County mother was told, after complaining of numerous visitation violations, that she was responsible for enforcing her own visitation agreement, despite the father's hostility. On the other hand, custodial mothers are frequently told by our courts that they must rearrange their schedules and make the appropriate arrangements so that the children can visit the father in jail, even when he is in jail for a violent crime like assault. This, too, seems to be very common in Chautauqua County. And if they fail to comply, they can be accused of alienating behavior. This is despite the fact that there is no evidence that jail visitations are of any benefit to children.
A recent New York Times article on the subject raised the specter of whether all this mandated prison visitation didn't, in fact, normalize the prison experience for at-risk young people. In fact, one of the biggest risk factors for becoming a criminal is not having a single mother, as is sometimes asserted, but having a parent or other close relative who exhibits antisocial behavior or has been incarcerated.

On the question of professional ethics.
There's often little recourse for parents who experienced breaches in professional ethics. It is often the word of the parent against the professional and any complaint tends to be dismissed as sour grapes on the part of the losing parent. In some cases it is not clear where one would complain or how. In the case of the evaluator who was not a licensed psychologist but a pastoral counselor, what professional board would apply?

In another case, a Chautauqua County attorney actually admitted during a pretrial conference that he had spoken to the child in question, a clear breach of professional ethics. The mother had suspected this was true, as some time before, the child had repeated -- had been repeating disparaging comments about the mother, followed by the mantra, "Daddy's lawyer says so". Yet no one within the court felt compelled to pick up on the matter. It would have been the responsibility of the wronged parent, who often has no credibility in these matters unless he or she is able to join in with other parents with the same or similar complaints.

In terms of reform, I think several initiatives need to be pursued. One, comprehensive training for all court personnel, especially in matters related to domestic violence and child abuse. Two, a presumption that perpetrators of domestic violence and child abuse not be granted custody when there's a nonperpetrator parent. Three, that jail visitation needs to be at the full discretion of the nonoffender custodial parent or caregiver. And, four, that clear lines of authority and accountability exist for obvious ethics violations, thus relieving some of the burden placed on parents.

Thank you for this opportunity.


  • At 1/08/2009 10:11 PM, Blogger Field said…

    I am Ella Mae Jones and I agree with you. I too live in Chautauqua country and have witnessed many injustices involving custody cases. It saddens me, it angers me, but most of all it discourages me. If we as social agents fighting fot the lives of female victims are not able to depend upon the law who can we depend upon? Where can we turn and how can we change the current circumstances?


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