Assessing the Veracity of Domestic Violence Allegations in Parenting Disputes
Domestic violence allegations are all too common in child custody cases. Some of these allegations are true; some are false. An unfortunate consequence of the false allegations is that suspicion is raised as to credibility any time domestic violence allegations arise in a family law case, even when the claims are true. Despite the need to protect falsely accused parents, it can be equally detrimental to abused spouses if true allegations of abuse are not taken seriously.
In cases involving real violence, a batterer may use the legal process as another form of abuse in an ongoing cycle. using children as pawns in a custody dispute, a batterer can continue to exert power and control even after a relationship has ended. If this type of abuse is not detected, a batterer may use the family court system to sustain or further an imbalance in power. To protect the family court from becoming a forum for abuse and to better explore the veracity of domestic violence claims, it is important for family lawyers and judges to be educated in the dynamics of domestic violence and how these dynamics are played out in child custody disputes.
Myths and Realities
When domestic violence allegations are raised in a case, it is important to recognize the myths about domestic violence that are pervasive in our society.
Myth: Battered spouses are passive individuals who are poor, ineffective, nonconfrontational, nonviolent, and who rarely, if ever, try to defend themselves.
Reality: There is no typical profile of a battered spouse. Domestic abuse and violence crosses all socioeconomic levels, all personality types, all professions, and all races. Therefore, expecting all victims to fall within the stereotype is unrealistic.
Myth: Batterers are chronically angry, violent individuals who are abusive across settings and situations.
Reality: There is no composite for a typical batterer. Batterers can be very well respected in their community. They may be quite charming, friendly, and engaging. They occupy all socioeconomic levels, all races, and all professions.
Myth: Battered spouses never get angry or fight back against the abuse.
Reality: Many battered spouses get irritable and have angry outbursts at some point in their abusive relationships. They also take steps to defend themselves and fight back. In fighting back, a battered spouse may use a weapon or object to equalize what typically is lesser physical strength.1 It is important for those judging domestic violence cases to understand that expressions of irritability and anger are normal reactions to trauma, and should not be used as a basis to conclude that the allegations of abuse are false.
Myth: Domestic violence equates to physical beatings.
Reality: Domestic violence takes on many forms, only one of which is physical abuse. Other forms of abuse are sexual abuse, emotional abuse, psychological abuse, economic abuse, and legal abuse. Any of these forms of abuse can cause traumatic reactions in the victim.
Myth: Battered spouses must be crazy to remain in an abusive relationship.
Reality: The incidence of psychiatric disturbance is no higher in battered spouses than in any other individuals.2 In actuality, what many people see as bizarre behavior on the part of battered spouses may actually be tactics they adopt to help them escape or avoid as much harm as they can in their extremely difficult circumstances. As an example, in one case, several witnesses reported that the victim, Sarah, would sometimes provoke her husband when he seemed most upset. She would call him a “stupid bastard” and tell him he knew nothing about raising children, which usually resulted in her getting a severe beating. However, when the sources were questioned further, it became apparent that the only times that Sarah provoked her husband in this manner was when he was losing his temper with the children. When asked about this, Sarah said that she could tell when her husband was getting ready to beat the children. She learned that if she distracted him from the children that she would get the beating instead of the children. As this example demonstrates, it is important to look at each strategy a victim uses in an abusive relationship in its own context rather than jumping to the conclusion that it is “crazy” behavior.
On a related topic, the legal system sometimes treats Posttraumatic Stress Disorder or Battered Spouse Syndrome as a standard that all battered spouses must meet in order to be considered “abused.” However, the psychological impact of domestic violence is not pathological.3 Traumatic experiences naturally affect people, but not all trauma victims develop Posttraumatic Stress Disorder nor should they be expected to. Even if they do, it is important to recognize that although trauma can affect someone’s way of thinking and reactions to others, these changes in thinking often represent accurate appraisals based on actual experiences with the batterer. This has implications when determining “reasonable perception of danger” in domestic violence cases. In cases involving real violence, a battered spouse’s “reasonable perception of danger” is likely to be different than the perception of someone who has no history of violence in an intimate relationship.
Myth: If there was real abuse in the relationship, the battered spouse would have left sooner.
Reality: Many people find it difficult to understand why battered spouses do not immediately leave a relationship at the first sign of violence, but there are many reasons why battered spouses stay. Some of these reasons include economic dependence on the batterer, not having a safe place to go, emotional dependence on the batterer, fear of being killed, or fear that the batterer may take the children. In fact, it is not uncommon for batterers to use the children to control their partner.
There also are other factors associated with abusive relationships that make it difficult for a battered spouse to leave. In some cases, there is what is commonly referred to as a cycle of violence.4 This cycle has three stages: tension building, acute battering episode, and the loving contrition or honeymoon phase. In the cycle, tension builds in the relationship until the point where the batterer abuses the victim. The abuse is then followed by the batterer being remorseful or extremely loving, affectionate, or caring. It is this third phase in the cycle, the claims of love, devotion, and promise to change, which although intermittent, cause the victim to maintain the relationship. The victim is always waiting for the “loving” person to show up again and will sometimes change their own behavior in an effort to eliminate the violent acts.
Finally, asking the question, “Why don’t abused spouses just leave?” implies that leaving will stop the violence. In many cases, not only does leaving not stop the violence, it exacerbates it. In fact, separation can be the most dangerous period in a violent relationship and this elevated level of danger can last for several years after termination of the relationship.5 In short, leaving does not necessarily equate to safety.
Who is the Victim?
How do you determine who is the victim in a battering relationship, especially if there is evidence to suggest that both parties were abusive toward each other at one time or another? Here are factors to consider.
1) Look to who had the power and control in the relationship. Violence is only one way in which a batterer tries to obtain his ultimate goal, which is to have power and control in the relationship. Other ways to gain power and control over someone is by using threats, isolation, controlling the finances, and using the children as pawns. When there is evidence that both parties have been violent, it can sometimes be helpful to focus on other aspects of domestic abuse that are not necessarily related to the violence to determine who is abused and who is the abuser.
2) Review collateral records such as therapy records, medical records or police reports. If available, objective records can sometimes support a victim’s allegations of abuse by showing a pattern of injuries or behavior on the victim’s or batterer’s part that are consistent with abuse. In custody cases, these records can be particularly helpful if the records predate the marital separation or child custody battle. If medical records show injuries, therapy records show distress or complaints about violence in the relationship, or police reports document claims of domestic abuse preceding separation, the likelihood that the allegations are being made to gain leverage is lessened. But records do not always exist. Some battered spouses do not seek medical treatment for injuries, admit to abuse in therapy, or call the police. There are many reasons why this may occur, such as feelings of shame, humiliation, and embarrassment or not wanting to get the batterer in trouble. In the other direction, the presence of records documenting allegations of abuse, even those predating separation, do not necessarily prove abuse occurred. Although probably rare, there arguably may be some spouses who anticipate a marital separation or child custody dispute and make reports of domestic abuse to gain leverage if the case goes to court. Therefore, while collateral records should be considered, they are only one element of proof in trying to determine the veracity of domestic violence allegations.
3) Interview collateral sources. In some cases, collateral sources, such as relatives, neighbors, friends and doctors, have either witnessed the abuse or observed behavior from either party that would be consistent or inconsistent with abuse. When questioning collateral sources, the inquiry should not focus solely on violent acts since they most often occur outside the presence of witnesses. Other dynamics of abuse should be examined, such as whether the alleged batterer isolated or threatened the victim. Inquire as to who made the decisions in the relationship and who controlled the finances. As with any witnesses, bias can influence what is reported. Therefore, credibility of the witness must be explored.
4) Look for evidence of change on the part of the alleged victim after the relationship started. Many battered spouses experience changes in their behavior, emotions, or thinking after becoming involved with an abusive partner. As far as behavioral changes, battered spouses often adopt the reality of the batterer, try to placate the batterer in order to avoid future problems or violence, assume responsibility for the batterer’s behavior, tolerate increasing levels of abuse, become hypervigilant to potential threats, withdraw from others, or have trouble concentrating. Emotionally, battered spouses often develop low self-esteem; blame themselves for the abuse; become suicidal; experience depression, shame, anger, anxiety, or fear; feel helpless or hopeless; and experience nightmares, flashbacks, or other kinds of intrusive experiences. In addition, their thinking may be characterized by denial and minimization of the abuse (i.e., there is nothing wrong with my relationship; I am not being abused) and they may not readily recognize their alternatives, such as leaving the relationship or calling the police. The more of these factors present, the more likely that the allegations of abuse are genuine.
5) Obtain a psychological evaluation. Psychological evaluation and testing of the alleged victim can reveal the presence or absence of trauma-related symptoms, some of which are described above, that often develop in victims of abuse. Evaluation and testing of the alleged batterer may identify personality traits or behaviors that are associated with violent behavior and antisocial attitudes. While psychological evaluation and testing can be useful, it is not full proof. Some genuine victims do not develop trauma-related symptoms, and some batterers present and test very well and do not show any violent or antisocial tendencies in the evaluation results.
Battling Historical Precedent
Because most battered spouses are women,6 it is unfortunate that the law historically has not been very protective of women, particularly married women. The first “law of marriage” was set forth by Romulus (founder of Rome in 753 B.C.). This law held that married women should “conform themselves entirely to the temper of their husbands and the husbands to rule their wives as necessary and inseparable possessions.”7 Thousands of years later, little had changed. As late as the 1800s, it was readily accepted and legal for a husband to physically abuse his wife. In fact, the common saying “rule of thumb” which is believed to have its origin in English Common Law, decreed that a man could not legally use a rod thicker than the diameter of his thumb to beat his wife.8 Strangely enough, this decree was established as a means of protecting wives from excessive abuse. During this same period, marital rape was unheard of because wives could not legally refuse their husbands’ conjugal rights.9
In 1871, Alabama was the first state to rescind a husband’s legal right to beat his wife. North Carolina moved in this direction in 1874, but provided the exclusion that “if no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw a curtain, shut out the public gaze, and leave the parties to forgive and forget.”10 With such legal precedent, it is ironic that the behavior that some courts have used to rule against battered women, such as considering them emotionally disturbed when they repeatedly return to their abusive partner, so closely follows the letter and intent of the laws on which our country was founded.11
Today, spousal battery is unlawful in the U.S.12 However, laws are of no use unless they are implemented. The old laws, the ones legally permitting spousal abuse, reflect literally thousands of years of societal attitudes about domestic violence, and such deeply entrenched attitudes are difficult to change. Fortunately, more and more jurisdictions are establishing specialized courts for domestic violence cases and more judges and attorneys are receiving continuing education in the area of domestic violence.
Using Experts to Discern Truth
Considering the legal and historical precedent, a domestic violence expert can be of great assistance to an attorney in cases involving domestic violence. Experts can be hired or appointed to serve one of three possible roles: consultant, expert witness/educator, or expert witness/evaluator. The decision as to which type of expert would best serve the case should be determined by case-specific issues and by the attorney’s needs in any particular case.
As a consultant. The primary role of a consultant is to review the information pertinent to the domestic violence allegations, analyze and interpret this information, and make suggestions as to how the attorney can highlight the strengths of the case and minimize the weaknesses. closely reviewing the records, a consultant may find links between domestic violence and key elements of the case that the attorney may not have recognized as significant. For example, batterers often isolate their victims from family and friends to lessen the likelihood that the abuse will be disclosed and to make the victim feel completely dependent on the relationship. Therefore, telephone records showing that the victim used to speak to out-of-state relatives daily before the batterer moved in compared with telephone records showing that the calls tapered off and eventually stopped shortly after the batterer moved in can be used to show one common dynamic in domestic violence cases (isolation). In cases where the allegations are false, an expert may be able to point out information in the records that could be or are inconsistent with the alleged abuse. For example, if evidence indicated that prior to the marital separation, the alleged victim had complete control over the household finances, made all the major decisions in the relationship, and was able to socialize with family and friends at all times of the day and night without any signs of jealousy on the part of the alleged abuser, a domestic violence expert should be able to point out that such behaviors and role assignments would be unusual in an abusive relationship.
A consultant may help prepare questions for opposing experts or adverse witnesses and help the attorney anticipate what arguments the opposing side may make or what strategies they may use in presenting their arguments. A consultant also should be able to critically review the work of other experts, including deciphering and explaining psychological test results, and assist in determining the advantages and disadvantages of using expert testimony in a specific case. Sometimes, there may be facts of a case in which using an expert witness could hurt more than help, but a behind-the-scenes consultant could assist the attorney in getting important pieces of information to the judge without having to call an expert witness.
Finally, hiring a consultant can be an effective use of time and money in cases where there are little of both because consultation can be done via fax, mail, e-mail, or over the telephone and there would be no portal-to-portal charges. In addition, it broadens the market for the attorney in that experts from anywhere in the country could be hired without having to worry about travel expenses.
As an expert witnesses/educator. The role of an expert witness/educator is to provide general educational information about domestic violence to the judge in the hope that such knowledge will help the court decide the ultimate issues. For example, this expert might be able to help the court determine whether a custody battle is an ongoing pattern of family violence, negate the myths about domestic violence, or help explain certain behaviors on the part of a battered spouse, such as leaving the jurisdiction with the child. In this scenario, the expert does not need to conduct an evaluation. The basis for the testimony is solely educational, although the attorney also might be able to pose hypothetical questions to the expert that mirror the specific facts of the case at hand.
As an expert witness/evaluator. An expert witness/evaluator’s role is to evaluate one or both of the parties, and in some cases, the children, in order to form opinions as to the domestic violence allegations and the specific needs of the family based on the results of the evaluation. Because psychologists and other mental health professionals ethically should not form specific opinions about individuals they have not personally evaluated, using this type of expert can be much more costly. However, if the evaluation results favor the client, this type of testimony can be very powerful. The disadvantages are the increased costs and the possibility that the expert will not find support for the position the attorney is taking in the case.
In assessing the veracity of abuse allegations in parenting disputes, the assistance of a domestic violence expert, either as a consultant or as an expert witness, can be an important ingredient for success in the courtroom. A skilled expert can assist in dispelling societal myths associated with domestic violence and help the participants in the legal process better understand the unique and often misunderstood dynamics of violent relationships. Hopefully, through education and the involvement of domestic violence experts, judges will be able to better assess the veracity of allegations so that in cases involving true domestic violence, abused spouses will receive the protections which the current laws seek to afford; and in those where false allegations are made, truth will help to reveal the motivations for accusations.
1 S. Bourg & H.V. Stock, A Review of Domestic Violence Arrest Statistics in a Police Department with a Pro-arrest Policy: Are Pro-arrest Policies Enough? 9 J. Family Violence 177–189 (1994).
2 Domestic Violence Information Manual: Myths about Domestic Violence, at www.infoxchange.net.
3 U.S. Department of Justice, The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act. NCJ 160972 (May, 1996).
4 L.E. Walker, The Battered Woman (1979).
5 A. Browne, When Battered Women Kill (1987).
6 Browne, supra note 5.
7 Browne, supra note 5.
8 Domestic Violence Shelter and Services, Inc., Domestic Violence: A Historical Perspective, at http:// domesticviolence.wilmington.org/historical.htm.
9 Michael Dowd, A Woman is Beaten Every 15 Seconds, at avcyber.com/forum/domvio14.html.
10 Supra note 8.
11 Browne, supra note 5.
12 Browne, supra note 5.
Dr. Sherrie Bourg Carter is a forensic psychologist in Ft. Lauderdale. She is co-director of the Institute for Behavioral Sciences and the Law, a forensic private practice specializing in family, criminal, and civil legal issues. She has conducted more than 200 family law evaluations.
This column is submitted on behalf of the Family Law Section, Caroline K. Black, chair, and Rana Holz, editor.