Harvard Public Health Review
Winter 2005




Miscarriage of Justice

By awarding child custody and visitation rights to abusive men, family courts transgress the fundamental rights of women and children

The 40 women came from towns across Massachusetts and from all walks of life, yet their stories were the same—shocking tales of battering and harassment at the hands of abusive ex-partners. Long after separation or divorce, the women said, their torment continued, aided and abetted by judges who gave unsupervised visitation and custody of their children to violent, controlling men.

“In a hearing to determine custody, the judge dismissed my claims of domestic violence despite an active [restraining order], despite evidence that my house had repeatedly been broken into, and despite evidence of continued threats
and harassment.”

“None of the 45 arrests on [my husband’s] record were considered, including assault and battery, and one arrest for kidnapping my son.”

“My ex-husband, who had physically and verbally abused me for 10 years, was awarded sole physical and legal custody of our two children. People gawk in disbelief. ... How can this be?”

From interviews with these 40 mothers who have waged custody fights in 10 of Massachusetts' 13 family courts, Jay Silverman, assistant professor of Society, Human Development, and Health and director of Violence Prevention Programs at HSPH, has discerned a disturbing pattern. Over and over, judges ignore documented evidence of male partners' past abuse, refusing to consider police reports, restraining orders, and social workers' evaluations. Flouting state law, these court officials award unsupervised visits and even sole physical and legal custody to abusive men, giving them fresh opportunities to manipulate and victimize their families.

Silverman, a developmental psychologist in the Division of Public Health Practice, has counseled hundreds of batterers, who in roughly 95 percent of cases are male. He has spent 13 years exploring interpersonal violence and its consequences for public health. In his view, the failure of probation officers, state-appointed custody evaluators, child-protective-service workers, and judges to protect abused mothers and children is a violation of these victims' fundamental human rights.

This past June, Silverman and his collaborators advanced this novel argument in the American Journal of Public Health. In light of international human rights declarations and treaties, the researchers found that family courts were likely failing to give sufficient consideration to the "right to due diligence" described in the U.N. Declaration on the Elimination of Violence Against Women; the "best interests of the child," defined by the Convention on the Rights of the Child; and the rights to "bodily integrity" and "equal protection" enshrined in the Universal Declaration of Human Rights.

"The right to freedom from violence is one of the most fundamental human rights," the researchers asserted. Without that freedom, "all other rights are meaningless."

Silverman and colleagues recorded women's grievances as part of the Battered Women's Testimony Project, publishing a summary of their findings in 2002. The documentation effort, funded by the Ford Foundation and the Wellesley Centers for Women, was a first step to "get this issue on the radar," Silverman says.

Anecdotal accounts of gender bias in custody disputes abound, Silverman says, but no one knows the extent of the problem. Family court records aren't open to public scrutiny. Even litigants lack access to custody evaluators' reports, on which judges rely when handing down child custody and visitation judgments. Moreover, there are no uniform standards for record keeping, even within Massachusetts.

Substantial evidence does exist, however, concerning the threat male batterers pose to women and children. Studies find that 40 to 70 percent of children of battered women are directly abused by their mother's batterer. Half of child homicides are committed by males within the family circle. And male partners commit half of all cases of that so-called "crime of passion" against women: murder.

Unfortunately, many court officials are captive to the myth that "the violence ends when the bad marriage ends," Silverman says. In reality, the risks to women and children often escalate in the aftermath of separation. According to some studies, up to 75 percent of both emergency room visits and calls to law enforcement for assistance were made by battered women after separating from their batterers.

Research also shows that batterers make bad parents. In The Batterer as Parent (Sage Publications 2002), Silverman and co-author Lundy Bancroft cite dozens of studies to show that many batterers abuse their kids verbally, psychologically, physically, or sexually, long after the family has disbanded. This year, their book won the Pro Humanitate Medal for best contribution to the child welfare literature from the North American Resource

Custody disputes provide a new arena for victimization, the authors argue. Male abusers are more likely to seek custody than nonabusers, and as likely to prevail, studies show. Using their children as pawns in an ongoing quest to torment their former partners, these men often question and challenge the mother's authority, the authors assert, making it difficult for her to discipline her children or sustain their love and trust.

State legislatures are not blind to this troubling reality. Forty-eight states, including Massachusetts, have laws requiring judges to assign custody to the non-abusive parent. But such statutes are rebuttable: Judges can override them in "the best interests of the child." In such instances, judges are supposed to file a written justification of their decisions. But most don't. "There's no oversight built into the system," Silverman says.
"U.S. courts remain incredibly reluctant to punish men for crimes against their families," Silverman observes. "In this country, family violence is still seen as a private matter."

"Men could beat, maim, and murder their wives with impunity until this century," he continues. "Until the 1990s, it was legal in some states for a man to rape his wife. Like slavery and racism in this country, violence against women and children is the legacy of longstanding legal and social structures."

Now, Silverman is calling upon legislators to uphold fundamental principles outlined in the United Nations declarations on Human Rights and Rights of the Child. Adopting a human rights framework is "critical for legal, social, and political change," Silverman argues, "because it demands change in government, not merely the actions and attitudes of a few individuals."

U.S. court officials, however, strenuously resist this framework, Silverman says. Ironically, he says, the very democracy that helped draft the 1948 U.N. declaration "is itself unwilling to be measured by a higher standard. Human rights issues stop at our border." He sums up the stance of many with a comment from one senior Massachusetts court official: "That may work in the Third World, but not in this country."

Around the globe, nations have signed human rights declarations against violence against women and children, among them East Timor, Burkina Faso, Indonesia, and Afghanistan. "Their leaders are being convinced by the World Bank, World Health Organization, and other groups that violence against women is a huge barrier to the economic and physical health of a country," observes Silverman, who has lent his expertise to these and other nations, where divorce remains uncommon. In Japan, he notes, government leaders have set up gender equality centers to address domestic violence, historically a pervasive but unspoken problem. They are motivated in part by marriage and birth rates, which are declining as young women opt out of traditionally subservient wife and mother roles.

What will it take to ensure equal rights for battered women? More research, to start. The Battered Women's Testimony Project has spawned documentation efforts in at least five other states, with similar results. Next, Silverman says,"We need more rigorous studies to ask, 'What is the prevalence of battering in custody disputes generally? How often are children being placed at risk as a result of family court decisions? What are the effects of these rulings on children, and how does healing from exposure to an abusive parent differ based on different custody arrangements?'"

As for court reforms, Silverman suggests several: Training for custody evaluators on the violence's impact on family dynamics. Investigation of abuse allegations in custody disputes by multidisciplinary review boards. Incorporation of all evidence into judges' decision making. Standardized record-keeping on such judgments, and creation of oversight mechanisms. Of course, such initiatives must be championed beyond the worlds of victims services and academe. The public must be made aware of court system inadequacies, so that citizens can lobby legislators to advocate for policy changes.

In the quest to comprehend the social contexts that give rise to abusive behavior, Silverman has won funding from the U.S. Centers for Disease Control and Prevention to study young adult men in cross-section. Using computerized methods known to elicit candid responses by guaranteeing anonymity, his team will survey 4,000 men ages 18 to 35 in Boston-area health centers about their involvement with partner and child abuse. The researchers will also ask about their exposure to violence, peer, and family interactions, and dating in adolescence, to shed light on social forces that give rise to partner violence.

"So far, most all we know about abusive behaviors comes from men who've been ensnared by the criminal justice system, from reports of battered female partners who seek services, or from more narrowly focused psychological studies," Silverman explains. "The vast majority of abusers have experienced no sanctions. Most battered women never seek services. We need broader studies of men out in the community to clarify factors that either put men at risk for this behavior or help them choose not to be abusive to their families. Then we can devise better interventions to reduce the problem."

Effecting legal, political, social, and cultural change is an uphill process. Consider the obstacles blocking Silverman's own path. Fathers' rights groups call his work junk science and post his photo on their websites. They have threatened to sue the University in an unsuccessful attempt to obtain transcripts from battered women who have participated in his studies. Undeterred, Silverman says effecting change through research and education is "what we're supposed to do in public health."

What of the victims? A few battered women are speaking out, as some did at a human rights "tribunal" organized by Silverman and colleagues in 2002 at the Massachusetts State House. So too are grassroots groups of "protective parents" in a growing number of states.

But most women are quietly trying to do all they can for their children, helping them cope with risks posed by men who are supposed to shelter these children from harm. Fearing further retribution from their one-time partners and the courts, these mothers keep their heads below the firing line. And wait for the system to change.

“What has happened to our rights? …

We have the right to not have custody changed as a punishment.

We have the right to protect our children from sexual abuse. We have the right to have all probative evidence considered.

We have the right to a judicial branch that honors its end of the social contract.”

--A mother’s testimony from Battered Women Speak Out: A Human Rights Tribunal


Karin Kiewra is editor of the Review and associate director of Development Communications.

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