Unique Risks to Children in Intimate Partner Sexual Abuse Cases
"[A] history of sexual assaults against the mother… [is] linked to increased risk of sexual abuse of the children and increased physical danger."
— Bancroft, Assessment of Risk to Children from Visitation with a Batterer, 1998.
"[T]he sexual abuse of a parent has been seriously neglected – despite its potentially severe traumatic impact on children and association with greater risk to the safety and well-being of children and adult victims."
— Ford, Children's Exposure to Intimate Partner Sexual Abuse, 2008 at 149.
Up to 50 percent of disputed custody cases in the United States involve intimate partner violence. See Jefferies, In the Best Interests of the Abuser (2016); see also American Bar Association (ABA) Commission On Domestic Violence, “10 Myths About Custody and Domestic Violence and How to Counter Them” (2006).
There is a vast literature on the negative impact of domestic violence on children and why batterers should not be awarded sole or joint custody or unsupervised visitation. See Schafran, “Domestic Violence, Developing Brains, and the Lifespan: New Knowledge from Neuroscience,” (2014); Levin, Child Witnesses of Domestic Violence, 2000; Davidson, Impact of Domestic Violence on Children, 1994). When the mother has been sexually as well as physically assaulted, the potential for harm to the children is particularly grave. As Katherine Ford explores in her article Children's Exposure to Intimate Partner Sexual Abuse:
"[I]ntimate partner sexual assault is associated with more severe depression, anxiety, and behavior problems in the children of adult victims, as compared to those whose mothers have been physically, but not sexually, abused. As a result of their exposure to sexual assault, children might also internalize distorted and unhealthy messages about gender and sexual consent." (citations omitted.)
— Children's Exposure to Intimate Partner Sexual Abuse at 144.
These observations are supported by a study of 449 abused mothers which found that the sexual abuse of physically abused women correlated positively with the level of disruptive behavior of those women’s children and their own psychological distress. See Spiller, et al., Physically Abused Women’s Experiences of Sexual Victimization and their Children’s Disruptive Behavior Problems, (2012).
Given the harm to mothers and their children, intimate partner violence should be highly relevant to child custody proceedings. Custody and visitation determinations in domestic violence cases can be difficult because the core values of family law and domestic violence law clash, particularly parental access vs. victim safety. An excellent presentation and analysis of these values as they affect custody and visitation is provided in Creating Justice Through Balance: Integrating Domestic Violence Law into Family Court Practice by Andrea C. Farney and Roberta L. Valente. When confronted with the tension between access and safety, judges should keep in mind that children are best served by being protected from violence against themselves and their protective parent. See Hon. Jerry J. Bowles, et al., A Judicial Guide to Child Safety in Custody Cases, (2008).
Research suggests that the adverse consequences of intimate partner violence on children may dissipate once mothers are safe. It is therefore critical that non-abusive parents be protected from on-going post-separation violence. See Jefferies, In the Best Interests of the Abuser (2016) at 5. Unfortunately, abused mothers often cannot get judges to acknowledge domestic violence and believe that the abuser inflicted it. See Shipley, Reviled Mothers: Custody Modification Cases Involving Domestic Violence, (2011).
The trial of a sexually and physically abused wife who killed her ex-police officer husband highlighted the effect abuse can have on children. The husband was extremely violent, sometimes punching his wife in the face when the family was stuck in traffic. He would also threaten his wife by showing her crime-scene photographs of dead bodies. His sexual abuse included forcing his wife to engage in his perverse sexual fantasies such as forcing her to watch him masturbate while he wore an adult diaper or women’s clothes. He also tried to solicit a couple to engage in role-playing with himself and the victim. The man’s 25 year old daughter stated that she did not attend her father’s funeral, but did go to his wake to make sure he was dead. His 21 year old son testified that he went to college out of state because he was afraid that his father’s behavior might cause him to commit suicide. See Bilefsky, An Abused Wife? Or an Executioner?, 2011.
Lundy Bancroft, "Assessment of Risk to Children from Visitation with a Batterer", Understanding the Batterer in Custody and Visitation Disputes (1998)
Dan Bilefsky, An Abused Wife? Or an Executioner?, N.Y. Times, Sept. 25, 2011
Andrea C. Farney & Roberta L. Valente, Creating Justice Through Balance: Integrating Domestic Violence Law into Family Court Practice, Vol. 52 Iss. 4 Juvenile and Family Court Journal 35 (Fall 2003)
Kathryn Ford, Children’s Exposure to Intimate Partner Sexual Assault, 1 Family & Intimate Partner Violence Quarterly 141 (Fall 2008)
Samantha Jefferies, In the Best Interests of the Abuser: Coercive Control, Custody Proceedings, and the “Expert” Assessments That Guide Judicial Determinations, 5(1) Laws 2016 at 4 (March 10, 2016). Citing Allison C. Morrill, et al., “Child Custody and Visitation Decisions When the Father Has Perpetrated Domestic Violence Against the Mother,” 11(8) Violence against Women (2005): 1076–1078.
Lynn Hecht Schafran, “Domestic Violence, Developing Brains, and the Lifespan: New Knowledge from Neuroscience,” Vol 53. No. 3 The Judges’ Journal at 32 (Summer 2014)
Megan Shipley, Reviled Mothers: Custody Modification Cases Involving Domestic Violence, 86 Ind. L. J. 1587 (2011)
Laura C. Spiller, et al., Physically Abused Women’s Experiences of Sexual Victimization and their Children’s Disruptive Behavior Problems, 2(4) Psychol. Violence 401 (2012)
American Bar Association Commission On Domestic Violence, 10 Myths About Custody and Domestic Violence and How to Counter Them (2006) [hereinafter ABA, 10 Myths]
Hon. Jerry J. Bowles, et al., A Judicial Guide to Child Safety in Custody Cases, National Council of Juvenile and Family Court Judges at 7 (2008)