How Can Advocates Help?
Alarmingly, alleging physical or sexual abuse by fathers may increase the risk of a mother losing custody. When batterers seek custody, they often win. A local advocate observed these factors often associated with women who lose custody. Loss of custody may mean loss of contact as well. Disbelieving judges, expensive legal fees, forced mediation and unending litigation render family court hostile to battered mothers struggling to protect their children.
What can advocates do? Advocates can listen to battered mothers, help them identify risks, and validate their experiences. Also, whenever they can, advocates should accompany women to custody hearings. Even women with attorneys need good advocates.
To be most effective, advocates must know the local legal landscape. This includes basic knowledge of how family court differs from criminal and juvenile courts. This knowledge provides a framework for helping battered mothers evaluate options and possible consequences for any action they may take.
Criminal court and protection order court proceed in a logical, straightforward manner. They have a clear beginning and end. Family court, where custody is litigated, is unpredictable. Custody matters can and are brought back into court even after the divorce is final. Assumptions governing criminal, juvenile and family court are so different that UK researcher Marianne Hester likened them to “three planets” *.
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Hester elaborated on this theme in Mothering Through Domestic Violence co-authored with Lorraine Radford. Hester ‘s model illustrates the focus of criminal, juvenile, and family court when addressing access to children by abusive fathers.
Criminal court recognizes battered women as victims, having certain rights and protections guaranteed by law. Its’ stated goal is limited to the enforcement of criminal laws. Child Protection’s goal of ensuring the “safety of the child” often ignores the relationship between mothers’ safety and that of their children. Family court’s “best interest of the child” may fail to address safety and the effects of the abuse on mothers and children. Building on Hester’s analysis, BWJP created a chart to explore each court’s response to domestic violence. Women caught up in more than one court system are especially vulnerable. Evaluating options should include possible effects in another court setting.
For example, an advocate assisting women with civil protection orders could raise the possible custody implications of this action. Civil protection orders focus on safety. But being served with a protection order may prompt some abusers to initiate divorce proceedings. In a divorce, custody determinations focus on the more problematic “best interests of the child” standard. On the other hand, filing a protection order while already enmeshed in a contested custody proceeding may backfire. Some family court judges punish mothers they believe are just using the system to elevate their status in the divorce case.
A no contact order issued by a criminal court (if there is a charge pending) might sometimes be less risky. Still, the risk of alienating a family court judge must be weighed against the loss of autonomy for the battered mother and the more limited relief provided through criminal no contact orders compared to civil protection orders. No remedy exists without pitfalls. Sometimes the best a woman can do is the least bad option.
Other articles evaluating differing courts’ approach to domestic violence cases include:
• Creating Justice Through Balance by A. C. Farney and R. Valente
• Beware Family Court by the Women’s Justice Center of Santa Rosa, CA
Given the current custody crisis, it’s reasonable to ask, can this system be reformed? The Native Women’s Research Project conducted a safety audit of native women’s experience in the courts. They found the reality of being a woman and a mother in a community is essentially ignored in our system. These values, they say, are absent in our courts:
- respect for women
- holism
- integrity
- respect for relationships
The audit concluded these absences render our courts anathema to native women.
While experts struggle with solutions to this problem, no easy fix is in sight. So, advocacy programs must find ways to support battered mothers, not just during litigation, but for as long as the abuse continues. Today this area of work is often beyond the scope of many agencies. Closing this gap can start to effectively redress what is currently a huge injustice.
For a more in-depth analysis of these themes, see “Advocating for Battered Mothers: The Least You Need to Know”, by Stephanie Avalon.
* Hester, Marianne "Future Trends and Developments: Violence Against Women in Europe and East Asia", VIOLENCE AGAINST WOMEN, Vol. 10., No. 12 December 2004
