RESEARCH INDICATING THAT THE MAJORITY OF CASES THAT GO TO COURT AS "HIGH CONFLICT" CONTESTED CUSTODY CASES HAVE A HISTORY OF DOMESTIC VIOLENCE
Compiled by Professor Joan S. Meier, Esq.
I. Janet Johnston's publications
Janet Johnston is best known as a researcher of high conflict divorce and parental alienation. Not a particular friend of domestic violence advocates or perspectives, she has been one of the first to note that domestic violence issues should be seen as the norm, not the exception, in custody litigation.
Janet R. Johnston et al, "Allegations and Substantiations of Abuse in Custody-Disputing Families," Family Court Review, Vol. 43, No. 2, April 2005, 284-294, p. 284.
Janet R. Johnston, "High-Conflict Divorce," The Future of Children, Vol. 4, No. 1, Spring 1994, 165-182, p. 167.
Johnston has noted that approximately 80% of divorce cases are settled, either up front, or as the case moves through the process. Studies have found that only approximately 20% of divorcing or separating families take the case to court. Only approximately 4-5% ultimately go to trial, with most cases settling at some point earlier in the process. (Citing large study by Maccoby and Mnookin, dividing the child: social and legal dilemmas of custody. Cambridge, MA: Harvard U. Press ).
Johnston cites another study done in California by Depner and colleagues, which found that, among custody litigants referred to mediation, "[p]hysical aggression had occurred between 75% and 70% of the parents . . . even though the couples had been separated. . . [for an average of 30-42 months]". Furthermore, [i]n 35% of the first sample and 48% of the second, [the violence] was denoted as severe and involved battering and threatening to use or using a weapon." -Johnston (1994), supra, citing Depner et al., "Building a uniform statistical reporting system: A snapshot of California Family Court Services," Family and Conciliation Courts Review (1992) 30: 185-206.
After surveying the research, Johnston concludes:
"Taken all together these studies suggest that, in divorces marked by ongoing disputes over the custody and care of children, both inside and outside the court, there is often a history of domestic violence in the family and a likelihood that the violence will continue after the separation." - Id. (1994) at p. 169.
It has previously been observed, based on research which predates the domestic violence/parental alienation battles that are now a feature of the field, that "multiple allegations of abuse are a feature of those higher conflict families" whose cases become contested custody litigation. - Johnston (2005), supra (citing Maccoby and Mnookin (1992).
II. Peter Jaffe's compilation of studies
Peter Jaffe is one of the world's leading experts on children, domestic violence, and custody.
- Peter Jaffe, Michelle Zerwer, & Samantha Poisson, (2004),"ACCESS DENIED: The Barriers of Violence and Poverty for Abused Women and their Children After Separation," p. 1.
In "Access Denied", Jaffe states the following:
"Myth: Domestic violence is rarely a problem for divorcing couples involved in a child custody dispute."
Jaffe et al also lists the following studies (with the following descriptions) as supporting the position that most custody litigants have had a history of domestic violence:
III. National Center for State Courts
Studies conducted by the National Center for State Courts (NCSC), looking solely at court records, have found documented evidence of domestic violence in 20-55% of contested custody cases.
The NCSC's study, looking only at documented domestic violence in custody court records, found that 24% of court records contained some evidence of domestic violence in Louisville; 27% in Baltimore; and 55% of Las Vegas cases indicated domestic violence. - Susan Keilitz et al, Ðomestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers, prepared for the National Center for State Courts; State Justice Institute," NCSC Publication Number R- 202, p. 5.
The same study found that a screening process (utilized by the mediation program) "revealed a much higher incidence of domestic violence than a review of court records alone would have indicated." - Id . at 7.
IV. Custody Courts Regularly Fail to Note or Lack Information about history of Domestic Violence
Kernic et al., "Children in the Crossfire: Child Custody Determinations Among Couples With a History of Intimate Partner Violence," Violence Against Women, Vol. 11, No. 8, August 2005, 991-1021, 1013,
Kernic et al. from the Harborview Injury Prevention & Research Center in Seattle, studied at divorce cases, including both those with a documented, substantiated, and/or alleged history of domestic violence, and those without. The study found that in 47.6% of cases with a documented, substantiated history, no mention of the abuse was found in the divorce case files. - Id . at 1005.
Kernic et al. found that "the court was made aware of less than one fourth of those cases with a substantiated history of intimate partner violence." - Id. at 1016.
Further, Kernic et al. found that fathers with a history of committing abuse were denied child visitation in only 17% of cases. Mothers in these cases were no more likely to obtain custody than mothers in non-abuse cases. This study found that mothers were "more likely" than fathers to be awarded sole custody, but does not identify what proportion of cases resulted in equal sharing of physical custody (which is available in Washington even when one parent is designated "primary"). - Id. at 1014-1015.
The Virginia Commission on Domestic Violence Prevention commissioned a study of these issues at University of Virginia in 1997-98. The study found that in custody cases where there was also a domestic abuse case in court, only 25% of the custody files referenced the existence of the domestic abuse case. - www.courts.state.va.us/fvp/history.html
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