Document Type

Article

Publication Date

2010

Abstract

Children, adult survivors, and their batterers who remain engaged in violence, even after they live apart, are living legacies of the historical perniciousness of domestic violence, a legacy that must change. True, over the past thirty years the politicization of domestic violence has raised public awareness, spurred legislative reforms, and propelled court innovations. However, the children, survivors, and batterers who still live domestic violence after divorce know all too well that all of our political advancements, legal victories, court innovations, and social awareness have not stopped the violence they live within their day-to-day lives. For many of these families, an order of protection or a judgment of divorce does not cease the violence.

Divorce provides ample, ongoing opportunities for the violence to continue. Children of divorce are often used as conduits to continue the abuse. Incessantly maligning a parent, inconsistently complying with agreed upon parenting schedules, unrelenting legal assaults against the other parent, insidiously brainwashing the child against the other parent, intentionally defaulting on support obligations, and sabotaging the other parent's parenting efforts are some weapons the abuser uses to continue exerting control. Often the batterer disguises his need for excessive control, a hallmark of domestic violence, under the cloak of “good parenting.” Under this guise, the batterer will exercise control by excessively monitoring the other's parenting, being hyper vigilant about what the child is doing during time spent with the other parent and deriding any parenting decision that is not within the batterer's control as counter to “my child's best interest.” For many, domestic violence is like a chronic disease: no cures, some remissions, ever present. The most potentially beneficial and realistic goal is to figure out how to keep survivors and batterers disengaged so that they might minimize the conflict to which their children are exposed. Management is the operative word. Why is this happening? What interventions might we offer to better and more realistically serve these families?

Despite the courts' commitment to combating this scourge, the courts have not always been successful in providing the protection these families need. In family and divorce matters, the traditional fault-based inquiry of the courts, which focuses on whether the domestic violence has in fact occurred, is a query that too often fails to accurately confirm or reject the existence domestic violence. Frequently, batterers present as more credible witnesses, survivors appear unbelievable, proof of emotional abuse challenges our evidentiary standards, and cognitive dissonance makes horrific allegations more difficult to accept as reality. Furthermore, many domestic violence cases before the courts do not present as domestic violence cases. Instead many cases are masked as contested custody and failure to support cases.

It is widely recognized that the fault-based inquiry that is so fundamental to our justice system has been ineffective in securing family justice. Acknowledging the need for change, court administrations have heralded innovations with a more problem-solving focus over the past twenty years. Increasingly, courts have systematically integrated alternative dispute resolution interventions such as parent education, mediation, and parenting coordination into their court offerings so that they are now integral additions to this problem-solving focus. Yet, families with domestic violence histories have been excluded from participating in these innovations. The oft-cited rationale for excluding these families from the opportunity to resolve their conflicts in these alternative forums is protection and safety. Critics of dispute resolution assert that dispute resolution forums, sans protection of the courts, will harm children and survivors. What a paradox! Sadly, courts have failed to consistently protect survivors and their families. Rather, for some survivors and their children, courts have become a sword rather than a shield that batterers learn to use to continue their abuse.

While this debate continues, five painful realities persist: 1. There is no agreement about what constitutes domestic violence; 2. There is no fool-proof screening for domestic violence; 3. Courts have been ineffective in stopping many forms of violence; 4. Batterers are statistically more successful than survivors at securing custody of their children; and 5. Children are the casualties of their family's violence. Given these painful realities, this discussion will go beyond the polemics and advocate more realistic supports to offer these families. Too much energy has been wasted trying to ascertain the veracity of abuse allegations in divorce and family cases while children and survivors continue to live abuse. The discourse must change. The more fruitful discussion is how to disengage parents in conflict, regardless of fault, whether real or contrived, so that their conflict is minimized in their day-to-day lives.

Critical to having this different discussion is a re-focusing on the survivor's sense of agency, rather than her victimization. Through this different interpretive lens, this discussion will suggest several interventions to minimize opportunities for abuse and maximize opportunities for enhancement of human agency. Parallel parenting and alternative dispute resolution interventions include parenting education, mediation, and parenting coordination.

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