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When Battered Mothers Lose Custody: A Qualitative Study of Abuse at Home and in the Courts

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Michelle Bemiller

ABSTRACT. The following study adds to research that examines child custody cases involving a history of interpersonal violence. This study contributes to past research by providing qualitative accounts of womenâ&#x20AC;&#x2122;s experiences with intimate partner violence prior to custody loss, institutional abuse at the hands of the family court, and abuse experienced after custody loss. Data come from a convenience sample of 16 noncustodial mothers from northeastern Ohio. Findings support past research, which finds corruption, denial of due process, and gender bias in the family court system. Policy recommendations are made and future research directions suggested.

KEYWORDS. Child custody, gender bias, institutional abuse, interpersonal violence

INTRODUCTION According to the U.S. Census Bureau, roughly one million children were living with their divorced fathers in 2002, close to double the

Michelle Bemiller is an Assistant Professor in the Department of Sociology, Anthropology, and Social Work at Kansas State University. Address correspondence to Michelle Bemiller, Department of Sociology, Anthropology, and Social Work, 204 Waters Hall, Kansas State University, Manhattan, KS 66505-4003. E-mail: bemiller@ksu.edu

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number of children living apart from their mothers in 1982 (U.S. Census, 2000). The most common factors affecting the custody status of mothers over time have been financial insecurity and mental or physical illness (Clumpus, 1996; Greif & Pabst, 1988; Santora & Hays, 1998). More recently, the adoption of gender-neutral custody policies within the family court system has been identified as responsible for the marked increase in paternal custody (Fox & Kelly, 1995). At the same time, recent research has unearthed a disturbing trend in family court decisions – fathers maintaining visitation and receiving shared (and sometimes primary) custody of children in contested custody cases when there is a history of spousal violence (Kernic, Monary-Ernsdorff, Koepsell, & Holt, 2005; Morrill, Dai, Dunn, Sung, & Smith, 2005) and substantiated allegations of child physical and=or sexual abuse (Neustein & Lesher, 2005; Winner, 1996). While difficult to determine, it has been estimated that between 25% and 50% of contested child custody cases involve domestic violence (Keilitz, 1997). While most states mandate the consideration of intimate partner violence when making a custody determination, findings indicate that family courts often ignore evidence of violence between parents, even when substantiated reports have been presented. An even more disturbing finding is that when allegations are proven, little is done to protect mothers and children, with fathers oftentimes maintaining regular visitation with children and sometimes receiving primary custody of children (Kernic et al., 2005; Morrill et al., 2005; Neustein & Lesher, 2005). Explanations for these findings vary. Some researchers point out that judges simply are not provided sufficient education on how to deal with cases of this nature (Morrill et al., 2005). Others focus on the court system, claiming that the courts are gender-biased, and as a result discount the seriousness of abuse allegations and even punish women for making allegations of abuse by denying them primary custody of children (Neustein & Lesher, 2005; Zorza & Rosen, 2005; Rosen & Etlin, 1996). The research to date has been based mostly on random samples of court cases with the goal of identifying trends in custody litigation. Missing from these studies is a rich, qualitative account of women’s experiences of abuse at both the individual couple and institutional level. No study to date has simultaneously examined women’s experiences with domestic abuse that exists before and after a custody decision, as well as institutional abuse – the denial of basic human


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rights within a system – that occurs in the family courts during custody litigation from the women’s point of view. This study fills this gap in the child custody literature. Using feminist qualitative methodology, the current study explores women’s experience of interpersonal violence in their intimate relationships, institutional violence that occurred during court proceedings, and post-custody abuse. Some cases of child abuse that occurred pre- and post-custody are also discussed. Data for this analysis come from interviews with 16 noncustodial mothers from northeastern Ohio who recount experiences with family violence and abuse from the family court system.

INTIMATE PARTNER VIOLENCE AND CHILD CUSTODY According to the American Psychological Association, it is estimated that one in three women will be the victim of a domestic assault at some point in their lives (Elias, 1994). According to the National Violence against Women Survey, 1.3 million women are assaulted in intimate partnerships annually (Tjaden & Thoennes, 2000). Interpersonal violence may be physical, sexual, or emotional in nature. Research on interpersonal violence defines intimate partner violence (IPV) as threats of injury, verbal assaults, beatings, throwing objects at victims, and threats to kill (Bergen, 1996; Johnson & Ferraro, 2000; Mahoney & Williams, 1998; Marshall, 1996; Tjaden & Thoennes, 1998). This definition can be found in the studies discussed throughout this article, resulting in a common definition that is applied across research on interpersonal violence. Demographic research indicates that lower-income black women are more likely to experience intimate partner violence than middle to upper income white women (Benson & Fox, 2004; Raphael, 2000). Regardless of race or social class differences, IPV is no longer viewed as a personal matter, but is instead viewed as a public issue in need of serious attention. In response to high rates of interpersonal violence, the criminal justice system has begun to educate police officers, prosecutors, and judges about the seriousness of this form of abuse (Jaffe & Crooks, 2004). Within the last decade researchers and practitioners have begun to focus attention on children born and raised in families where interpersonal violence is prevalent. Witnessing violence in the home


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has serious emotional outcomes for children (Jaffe, Wolfe, & Wilson, 1990; Kitzmann, Gaylord, Holt, & Kenny, 2003; Sever, 2004). Because of the seriousness of witnessing violence, states now mandate consideration of intimate partner violence in child custody proceedings (Levin & Mills, 2003). Most states, in fact, allow or require courts to consider a history of interpersonal violence as part of the criteria for determining the ‘‘best interests of the child standard’’ when determining custody (Drye, 1999; Levin & Mills, 2003). While courts are supposed to screen for the existence of IPV, this does not always happen, resulting in cases where IPV goes unnoticed or cases where victims are responsible for reporting and providing objective evidence of the existence of IPV. This is a difficult task for victims since instances of IPV are oftentimes not documented in the criminal justice system because of the victims’ decision not to file police reports or because of police failure to appropriately document such incidences. Further exacerbating the problem of identifying IPV during the custody process is the lack of education of court personnel. Due to lack of education, personnel oftentimes do not understand the traumatic effects of IPV on victims. Further contributing to women’s victimization, court personnel may question the victims’ credibility and their disclosure of abuse as untrue or exaggerated (Lemon & Jaffe, 1995; Matthews, 1999; Neustein & Lesher, 2005). This leads to many instances of IPV going unnoticed or not being appropriately dealt with in the courts. Jaffe and Geffner (1998), in fact, have asserted that identification of a history of domestic violence in child custody cases is rare and is a problematic and prevalent problem. Many researchers and activists have argued that the lack of attention paid to IPV in custody cases is the result of gender bias and corruption in family courts. Rosen and Etlin (1996), for example, found that judges were more likely to give custody of children to abusive fathers because of the assumption that battered mothers were unable to take care of themselves (i.e., could not stop the abuse) and therefore could not care for or protect their children. In an analysis of over 300 child custody cases involving allegations of child abuse across the country, Neustein and Lesher (2005) found that sexually and physically abusive fathers were awarded primary custody of children 100% of the time. Their findings pointed to a family court system that is corrupt and biased against women. These researchers document cases where mothers’ allegations of abuse are viewed as the rantings of mentally unstable, angry divorcees who want to get even with their husbands for the divorce.


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Several published reports also document family court dysfunction. Two notable examples were produced by the National Organization for Women (NOW) (Heim, Grieco, Paola, & Allen, 2002) and the Wellesley Centers for Women (Cuthbert, Slote, Driggers, Mesh, Bancroft, & Silverman, 2002). NOWâ&#x20AC;&#x2122;s (2002) report documented womenâ&#x20AC;&#x2122;s experiences with family court dysfunction in California. This found corruption, denial of due process, and gender bias in the family courts. Similarly, The Wellesley Centers for Women (2002) published a report that examined violations of human rights laws and standards in the Massachusetts family courts. These violations included failure to investigate allegations of child abuse in contested child custody cases. In a study completed in Spokane County, Washington, Drye (1999) compared custody decisions between couples with and without a reported history of interpersonal violence or child abuse. Findings indicated that the courts were more likely to appoint the non-abusing parent as the primary custodial parent and to order supervised visitation for the abusive parents. More specifically, out of 2,019 dissolution cases studied, 165 cases were identified as violent relationships where children were present. When mothers were identified as abusive, they were denied custody 56% of the time; abusive fathers were denied primary custody in 44% of the cases. In these instances, parents were ordered to participate in supervised visits with their children. In an attempt to further understand the effects of IPV, Kernic et al. (2005) completed a retrospective cohort study of 2,516 couples with children under the age of 18 in Seattle, Washington. The authors found a history of IPV in 11% of the cases examined. Kernic and colleagues (2005) found that mothers with a history of IPV were no more likely than comparison group mothers to be awarded child custody, although overall mothers in the study were more likely to be awarded custody of children than fathers. The authors also found that 25% of fathers who were known perpetrators of IPV were not expected to have third-party supervision during child visitation, but were often remanded to counseling. The overall findings of this study led to the conclusion that IPV is oftentimes not identified within the custody proceedings even when there is a documented, substantiated history of IPV present, and that there was a lack of strong protection orders among cases where a history of substantiated IPV was known to exist. Studies have also examined the existence of abuse that continues after fathers are awarded joint custody, primary custody or visitation.


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Findings indicate that joint custody or visitation arrangements open the door for continued abuse of women and children. Types of violent behavior cited in this research include continued threats to the women’s and children’s well-being, mothers’ relinquishment of legal rights to children out of fear of their abusers, and continued physical and emotional abuse of women and children (Neustein & Lesher, 2005; Shalansky, Erickksen, & Henderson, 1999). To date, the majority of studies completed on IPV and child custody determinations have contributed to knowledge through the use of survey research, neglecting rich, qualitative accounts of women’s abuse in their own words. This research has also neglected to simultaneously examine domestic abuse that exists before and after a custody decision, as well as institutional abuse that occurs during custody litigation. This study fills these gaps in the literature by providing women’s accounts of interpersonal violence in their intimate relationships, institutional violence that occurred during court proceedings, and post-custody abuse. Some discussion is also devoted to cases of child abuse that occurred pre- and post-custody.

RESEARCH METHODS Feminist Methodology Feminist qualitative methodology was used as a framework to guide the research throughout the data collection process. Feminist methodology acknowledges the agency of the research subject in the construction of her own lived experience and strives to give women a voice by asking practical and policy relevant research questions that privilege the subjective experience of the participants (Allen & Baber, 1992; Collins, 1990; Cook, 1983; Smith, 1990). In particular, feminist methodology has a shared commitment to three goals: 1) to reveal the diversity of women’s lives by focusing on what has been ignored, censored, and suppressed in their lives, shifting the focus away from men’s concerns; 2) minimizing harm and negative consequences to women in the research process by dismantling hierarchies of power and control in relationships between the researcher and research participant; and 3) seeking a methodology that supports research of value to women, leading to social change or action that benefits women (e.g., changing theory, bringing new topics to light,


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or raising consciousness about womenâ&#x20AC;&#x2122;s issues) (Chafetz, 1997; Cook, 1983; Devault, 1996; Millen, 1997; Reinharz, 1992). Overall, feminist researchers understand the importance of exploring womenâ&#x20AC;&#x2122;s experiences as different from those of men as well as from other women (e.g., on the basis of race, class, motherhood, and so on). Feminist methodology influenced this study because of its womancentered focus and concern with dismantling power dynamics between the researcher and research participants as well as its goal of providing information on womenâ&#x20AC;&#x2122;s experiences with abuse inside and outside of the family court. From the onset of this project, the mothers who participated in this study were seen as the experts of their stories, providing the researcher with important information about the lived experiences of noncustodial mothers that could not have been obtained through mainstream survey research.

Sampling Strategy While random sampling strategies could have been used to gather data, convenience sampling was used based on past research that indicated the difficulties in locating noncustodial mothers through random sampling strategies (see Arditti & Madden-Derdich, 1993; Clumpus, 1996). Convenience sampling involves sampling cases that were available at the time of the study (Singleton, Straits, & Straits, 1993). In gathering participants, several convenience sampling strategies were utilized. The choice to use several sampling methods was also based on similar research where the researchers had difficulty in locating participants via one sampling method (See Arditti & Madden-Derdich, 1993; Clumpus, 1996). Participants were found through the use of flyers, court record searches, and snowball sampling. Flyers were posted in public places (e.g., Laundromats, beauty salons, universities, therapeutic communities), letters were sent to women who had a custody case between 2000 and 2003, and referrals were collected from participants. Each respondent was paid $25 for her participation.

The Sample The sample consists of 16 women from northeastern Ohio. Northeastern Ohio is a predominately white (roughly 67%), middle class region with an average citizen income of $32,000. In comparison to men, women averaged $24,000 a year. Roughly 50% of the population


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is comprised of individuals between the age of 25 and 64 (U.S. Census, 2000). The demographic characteristics of the women in this study mirrored the statistics of the northeastern Ohio region. The women ranged in age from 27 to 48 years of age. Of the 16 women in the study, 75% were white (n ¼ 12) and 25% were African American (n ¼ 4). Incomes for women at the time of the interview ranged from zero income to women who earned $70,000 a year. The mean income for the sample was $21,000. Seventy-five percent of the sample were divorced (n ¼ 12) and 25% had never been married (n ¼ 4).

The Interview Process While feminists use an array of research methods, the choice of method is dependent on the research problem to be studied. A key method for understanding women’s experiences has been the oneon-one interview because of its conduciveness to raising consciousness about women’s experiences in their own words (Devault, 1996). In this study, semi-structured one-on-one interviews were used to further understanding about women’s relationships with their ex-partners (i.e., husbands or boyfriends) as well as their experience in family court during custody litigation. Semi-structured interviews were particularly useful because they allowed for the mutual exchange of ideas through interaction between the researcher and the participant. The in-depth interview gave women a voice, providing them an opportunity to talk about their lived experiences as noncustodial mothers in their own words. Questions for the interview were constructed after a thorough examination of past research that documented noncustodial mothers’ experiences with motherhood. This research examined social definitions of motherhood as well as social perceptions of noncustodial mothers as deviant mothers. Missing from the literature was a thorough, qualitative examination of women’s experiences in family court. Because of the lack of qualitative research on women’s experiences in the family court, questions were developed that specifically asked the mothers to recount their experiences during custody litigation from start to finish. The interview schedule did not specifically ask women to recount experiences of family abuse. Instead it asked for them to discuss their background growing up (i.e., family relationships as well as intimate relationships) in a very broad sense as well as their experiences with motherhood. Despite the lack of a


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specific question related to intimate partner violence, every participant (n ¼ 16) recounted examples of abuse in their relationships with their children’s fathers. When women began to discuss their custody case they referenced institutional abuse as well (i.e., gender bias, lack of due process, corruption). The interview schedule was a guide that was referenced to ensure that key points were brought up during the interviews. In many cases the participants touched on all of the key areas of interest without probes. What resulted was theoretically rich data that provided insight into women’s experiences with motherhood, partner violence and the family court. Interviews lasted between one and three hours. It is important to note that the data discussed is based on the mother’s perceptual experiences. Their reality was seen as their ‘‘truth,’’ which is a key component of feminist methodology as feminist researchers are interested in hearing women’s stories in their own words, bringing to light women’s understanding of their social experiences. If the women’s ex-partners or court officials had been interviewed, it is quite probable that a very different story would have emerged, based on these individuals’ definition of the situation (i.e., perception). Many of the women offered evidence to corroborate their stories, but this evidence was not collected or analyzed by the researcher because the women’s perceptual experiences were central to the research project. Perception is very important in understanding how we see and experience the world. As sociologists W.I. and Dorothy Thomas (1928) have stated, ‘‘If people define situations as real, they are real in their consequences.’’

Data Collection and Analysis Grounded theory method was used to analyze the data. According to Charmaz (2004, p. 497), grounded theory methods consist of a set of inductive strategies for analyzing data. That means you start with individual cases, incidents, or experiences and develop progressively more abstract conceptual categories to synthesize, to explain, and to understand your data and to identify patterned relationships within it. Theoretical analysis is based on the stories of the individuals whose worlds you are studying (Charmaz, 2004). Grounded theory method dismantles the boundaries that exist between data collection and analysis. Through the research process, theory is generated through the continuous interplay between


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analysis and data collection. Accordingly, multiple perspectives must be sought and understood through the data collection process. In other words, multiple voices must be attended to as the researcher participates in a constant comparison of data. Grounded theory method assumes that effective theoretical coding is enhanced by theoretical sensitivity. According to Strauss and Corbin (1998), the more sensitive researchers are to issues of class, race, gender, power, and so on, the more attentive they will be in the coding process. In keeping with grounded theory method, the analysis process began during the actual interviews. Field notes were completed in which memos were made regarding themes that emerged during the interview. The second stage of the analysis involved the actual coding of the data. The interview data and field notes were entered into NVIVO, a data software tool used to explore and interpret textual data. NVIVO was useful in managing, tracking, and discovering patterns in the data. Using NVIVO, each interview was coded so that conceptual categories that reflected the participants’ subjective experiences as noncustodial mothers could be identified and elaborated.

DATA ANALYSIS The themes discussed in this research come from a much larger project that explored noncustodial mothers’ experiences as nonresidential parents. The current study focuses on themes that emerged from this data that relate to mothers’ experiences of domestic violence and unfair treatment in the family court system. Findings of this study indicate that noncustodial battered women experience a triad of abuse that begins in their intimate relationships, is exacerbated by the structure and process of custody litigation in family court, and continues after the custody decision. Women’s experiences of intimate partner violence prior to the custody dispute are first discussed, including physical, sexual, and emotional abuse. Some mothers also discuss accounts of child abuse that occurred during their intimate relationships. Next, family court abuse is discussed, followed by an examination of post-custody abuse.

Intimate Relationship Abuse It has been well documented that partner abuse comes in many forms. Research has mostly focused attention on physical abuse of


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women (Johnson & Ferraro, 2000; Tjaden & Thoennes, 1998), but other scholarship has acknowledged sexual assault (Bergen, 1996; Mahoney & Williams, 1998) as well as emotional and mental abuse (Marshall, 1996) as serious forms of violence against women. The mothers in this study experienced all forms of partner abuse during their intimate relationships. In the majority of the cases (n ¼ 13), the women cited abuse as the reason for the termination of their relationships. Debbie, the mother of three daughters, had been married twice. Debbie experienced abuse in both of her marriages. The majority of Debbie’s interview focused on her custody experience in her second marriage: We got divorced because he was abusive and I just got tired of . . . I’m sure . . . I don’t know if you’ve learned about that cycle of abuse. Well I got tired of the cycle. I really did. I was going through school at the time at the university and every time I had something important, a big test or a paper due, or something very important, that’s when he would become abusive and try to keep me from succeeding. It was tiring. It was really tiring. And I just decided by the time the 4½ years were over, when I get done with this [school] and I get independent financially, I’ll be independent. You know? I just can’t do this anymore. And I have three girls and I can’t teach them that this is a healthy relationship. This isn’t right. This isn’t how a man and a woman are supposed to relate to each other. Maggie, a mother of three boys, had been married twice. Maggie’s first marriage ended amicably and was not abusive. Her second marriage, which she refers to as ‘‘the nightmare’’ was wrought with abuse. She experienced emotional, physical, and sexual abuse at the hands of her second husband: He’d start up an argument, he’d throw things. He’d hover outside the windows to watch me. He accused me of cheatin’ on him. He’s watching everything I’m doing. He’s following me, he’s stalking me. I can’t even go to the grocery store and there he is. So I’m at home with the boys one night and he’s lurking through the front porch windows. And I said, I thought you were gone. And he goes, ‘‘no I’m watching you.’’ And I said, what for?


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‘‘Because don’t you be going anywhere.’’ I said I’m not going anywhere. I’m going to stay right here. He goes, ‘‘if I come back and you’re gone . . . ’’ I said go do what you’re going to do. So he comes back late and he starts another fight with me . . .

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Maggie’s second husband increased his abusive behavior while she was pregnant with their second son. She cried as she discussed this abuse: Then I was pregnant with Joey and you know how you get when you’re pregnant. You’re tired . . . well I’d be laying down and he’d come walking up the steps and he’d tell me to get up off my fat ass and do something. And I said well I’m tired and he said, well you shouldn’t, you’ve got an easy life. Or he’d go out at night cause he didn’t like my dinner. So, he’d go out, come home drunk. I’d be sleeping. He’d either throw pillows at me to wake me up and start an argument or he’d just have sex with me without waking me up. Anita, a mother of six children, had been in three different relationships. She recounted a rape experience that led to the conception of her youngest son, ‘‘I didn’t know him [her son’s father]. You know? We met at the bar and he was giving me a lift but he ended up raping me.’’ Anita realized at a later date that this man lived down the street from her family. After finding out she was pregnant, she contacted the man again and started a relationship with him because she had little means of financially supporting herself and her children. During the course of the relationship, Anita continued to experience physical and emotional abuse. During her pregnancy, Anita stated that, ‘‘I had to get a restraining order against him because he jumped on me when I was pregnant.’’ Mo had only been married to one man and had four children during the course of this relationship. She experienced both physical and emotional abuse at the hands of her husband. Mo felt that a lot of the abuse was due to the fact that her husband had a ‘‘drinking problem.’’ Her husband dislocated her elbows and shoulders, and verbally and emotionally abused her on a regular basis. Because of the abuse that she experienced at the hands of her husband, Mo was forced to drop out of nursing school. Eventually Mo could not take the abuse any longer and she moved to a domestic violence shelter for several weeks. At the time of the interview, Mo was living with her parents and


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supporting herself working part-time at a bank. She was financially insecure, which led to the loss of her children to her children’s father. Lenore, a mother of three boys, experienced both emotional and physical abuse similar to Mo. Lenore’s husband had three domestic violence charges filed against him during the course of their marriage. Lenore discussed how she got to the point in her marriage where her husband disgusted her, ‘‘I just got to the point where I didn’t want to have sex with him. And he would tell me, ‘I’ll take it. You’re still my wife.’ And I was like, ‘if you do I will call the police and I will file rape charges.’’’ Roberta, a mother of three daughters, discussed the emotional abuse that she experienced at the hands of her husband. She specifically cited this abuse as the reason for her divorce. Other women reported similar experiences of verbal, physical and sexual abuse. The women also recounted experiences where their children were being physically and emotionally abused by their partners. Maggie, for example, discussed how her second husband would force her eldest son from her first marriage to eat out of the garbage can and would degrade him in front of her and the other children. Grace stated that her son was beaten with a belt by his father and ridiculed in front of his siblings for wetting the bed. Both Debbie and Roberta stated that their husbands verbally abused their daughters on a regular basis. Other mothers had similar accounts. No race or social class differences were noted during the analysis of the women’s accounts. During the time of the custody hearings, none of the women were in financially secure positions. In reference to race, women experienced abuse regardless of whether they were Caucasian or African American. These findings are contradictory to empirical research that indicates that the most severe domestic violence occurs among low-income women of color (Benson & Fox, 2004; Raphael, 2000; Rennison & Planty, 2003). The lack of corroboration between the current study and past research may be due to the non-representative nature of the current sample. Women’s experiences with institutional abuse in the family court were also similar regardless of race.

The Family Court and Institutional Abuse Upon entering the family court, most of the mothers (n ¼ 14) reported being victimized by a court system biased against women. I refer to this victimization as ‘‘institutional abuse’’ in this research.


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Institutional abuse is a form of covert abuse that occurs on a systemic level and is often connected to personal failings rather than structural processes. For example, Gilligan (1996) argues that poverty is a form of covert, institutional violence because it negatively impacts the life chances of an entire group but is often seen as an individual failing rather than a structural problem. Institutional abuse occurs as individuals’ basic rights are denied or as individuals are discriminated against within a system. In the case of the mothers, institutional abuse occurred as family court officials failed to adequately assist women in gaining knowledge about the family court process during custody litigation (e.g., access to lawyers, information regarding court bureaucracy), ignored allegations of partner abuse and abuse of children, and ignored criminal activities of former partners. This abuse was seen as institutional abuse because the women were denied basic rights within the courts and they were discriminated against because of their gender. The loss of their children due to this institutional abuse negatively impacted the women’s lives. The mothers felt that they were discriminated against in the system because of their lack of economic resources, which in most cases led to their inability to hire legal counsel, and subsequently the loss of their children. They also felt that they were discriminated against because of their gender, perceiving that the judges were ‘‘on the side of the men.’’ One woman, Anita, stated, ‘‘It’s a man’s world and women can’t win in court.’’ Maggie echoed this statement as she indicated that the courts were not trying to do what was in the best interests of the children, but were instead doing what was in the best interests of fathers. Thus the women did not see the process as gender neutral, but instead saw it as gender biased in favor of fathers. These findings demonstrate that a decade after Rosen and Etlin’s research on battered mothers’ experiences in family court and five years after the NOW and Wellesley Center reports, women’s experiences of gender bias in family court remains the same. These examples of institutional abuse play out as women discuss their poor economic situations during their custody hearings as well as through their specific discussion of gender bias in relationship to court corruption.

The Economics of Motherhood Single and divorced mothers find themselves in financially precarious circumstances. Research indicates that divorce brings greater


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economic hardship for women (Smock, Manning, & Gupta, 1999; Wang & Amato, 2000). The decline in income is especially true for women who have small children. Their standard of living drops about 37% (Seltzer, 1994). Casper and Bianchi (1998) note that single mothers’ (i.e., mothers who have never been married) circumstances are no better. In particular, single mothers tend to be more disadvantaged than divorced mothers in terms of education level and employment. As a result, Casper and Bianchi (1998) found that divorced mothers were better able to financially support their children than single mothers. Regardless of whether the women were divorced or single mothers in this study, lack of income was an issue. During the time of the interviews, some of the women were financially secure (n ¼ 3) due to finding gainful employment or having remarried. At the time of their custody hearings, however, none of the mothers had been in a financially stable position which meant that they could not afford legal representation. The women were never told that they were allowed to have an attorney appointed to their case if they could not afford one, so they represented themselves, referred to as ‘‘pro se.’’ When the mothers represented themselves in court, they felt that they were at a serious disadvantage because they had no knowledge of how the system worked. As a result, they saw their lack of representation as a key reason for their loss of custody. Linda is a perfect example of how lack of economic resources negatively impacts women’s chances of gaining custody. Linda did not have legal representation in court due to lack of finances. Her ex-partner had a ‘‘ritzy’’ lawyer by his side during the custody proceedings and won. Linda thought that the court would respect her for representing herself but instead she felt disadvantaged: Dogged. They dogged me. I thought they would try to respect the fact that I tried to represent myself. They call it pro se when you don’t have any legal representation. But I learned that they respect the one paying the money. They really do. They all rub noses and drink tea and crumpets together anyway. His [her ex-partner] attorney knew the judge and here I am just me. You know? I really look at it that way. I felt so railroaded. Money talks. Money talks. If you got money, you get a lawyer, that’s all it takes.


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Maggie’s situation was similar to Linda’s. Maggie had spent the last seven years in court, fighting to gain and maintain access to her two youngest children. Because of her lack of money, Maggie had been representing herself in court while her second ex-husband had an attorney. Maggie was convinced that the presence of a lawyer benefited her ex-husband in the custody outcome. Maggie claimed to have ‘‘gotten the shaft from day one’’ because she could not afford legal representation. Maggie saw the court as unfeeling and not operating in the best interests of the children: They don’t care about . . . I think whoever has the money and the poor people walk. This whole system on divorces and everything is just not right. I’m sorry but it’s not. I just wish the court system would change and stop thinking of people that have the money rather than the people that don’t have the money. It should be the people who are more concerned about the children than themselves than their money or whatever. Money isn’t everything but it seems to be everything nowadays. It [the system] S-U-C-K-S. When Gloria went to court for her divorce and custody hearing, she spent so much money that she had to file for bankruptcy. Gloria did have an attorney, but she did not feel that her attorney was as good as her ex-partners’. The attorney did not return her phone calls and rarely met with her before court appointments and the trial. The custody dispute was over when Gloria ran out of money ‘‘The only money I had was what was in my house. But that’s when everything ended. When my money ran out.’’ As a result of not being able to hire an attorney, or in Gloria’s case a competent attorney, the women felt that they lacked important knowledge that might have assisted them in their fight for their children. Linda stated that if she had it to do over again, she would: Keep putting the court hearing off until I had a lawyer. Because a lawyer would have informed me of my rights and what was in my best interests even as far as if they made the decision to let him have her they would have been there to help spell out how it was going to be. Anita also felt that because she did not understand the court process she was taken advantage of: ‘‘If you don’t know then they can do


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whatever they want to you. And that’s what they did.’’ At the time of her interview, Shirley, a mother of two daughters, had court papers that needed to be filled out in order to get visitation with her second daughter. Shirley discussed her inability to understand the paperwork, saying she would have benefited from access to an attorney. Other women in the study wanted to go back to court to fight for custody but could not afford to do so. Grace, for example, had given up custody of her son three years ago and wanted to go back to court to try to regain custody because her son was being emotionally and physically abused by his father and stepmother. Grace had not started the process to regain custody because she did not have the money and she claimed that the system was so backlogged in Florida that her case would not be heard for several years. She spoke at length about how screwed up the court system was and that it was unfair that she would have to pay $10,000 to do what was right for her child: ‘‘I should be able to talk to the judge and tell the judge that my son is being beat with a belt and wets the bed and that he wants to live with me without having to pay all that money.’’ These women’s accounts of their experiences with the family court are reminiscent of research completed by Cuthbert and colleagues (2002), and Neustein and Lesher (2005), which found that corruption, denial of due process, and women’s economic situation contributed to loss of custody (see also Clumpus, 1996; Greif & Pabst, 1988). Divorced and single mothers are already at a financial disadvantage in society. Add a custody battle to their precarious situations, and the result is loss of custody.

Gender Bias in Family Court Processes Institutional abuse could also be seen through corruption and denial of due process which the women felt was intimately connected to gender bias. It was very common for the mothers to speak of judges who ruled in favor of fathers who had been found guilty of abusing both their wives and children, or who were alleged to be abusive fathers. Some women also spoke of judges who gave custody to fathers who were participating in criminal activities (e.g., drug use, drug sales). Neustein and Lesher (2005) and Ford (2005) discuss similar findings in their research, stating that the decision to give custody to abusive, criminal fathers may be the result of the family courts’ attempts to demonstrate gender neutrality, but is actually gender bias in action.


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Anita, a mother of six children, had been involved with the court system for several years. Not only had she been in court, but she had also been involved with children’s services. Anita talked about a corrupt family court that is biased toward fathers. She felt that her ex-partner was not the best parent, yet the court, ‘‘took my child and gave him to his drug addict dad.’’ Gloria echoed Anita’s sentiments, regarding the system as corrupt and not operating in the child’s best interests. Gloria became aware that her ex-partner was abusing her daughter after their intimate relationship ended. After visitations with her father, Gloria’s daughter was withdrawn and unhappy. She would refuse to visit her father again. After having the child checked by several medical professionals it was determined that the father was physically and sexually abusing the child. Gloria refused her ex-partner visitation and was subsequently taken to court for denial of visitation. Even though Gloria had substantiated reports of abuse her ex-partner was granted custody of their six-year-old daughter. During the court proceedings, the allegations of abuse were never entered as evidence because ‘‘the papers mysteriously disappeared.’’ Gloria told the court that she had copies of the papers that documented the abuse, and the court told her they did not want to see them, that ‘‘he’s [her ex-partner] changed. He’s gone to counseling and he’s changed.’’ Gloria insisted that the system was ‘‘about politics, not fairness. It’s not in the best interests of the child.’’ Gloria and Anita’s experience mirrors past research that discusses family court corruption and custodial fathers’ abuse of children (see Ford, 2005; Neustein & Lesher, 2005; Winner, 1996), but deviates from Dyer’s (1999) finding that non-abusive parents were more likely to receive custody in families with a history of family violence. Other children were regularly put into custody of a father who had abused their mother (as previously mentioned). Judges refused to hear undocumented cases of abuse (e.g., experiences of women such as Maggie, Debbie, and Jean to name a few) as well as cases where the mothers claimed to have filed police reports. Lenore, for example, attempted to bring her ex-husband’s domestic charges to the judge’s attention. Lenore’s ex-husband’s attorney stated that these charges should not be brought up in court as they had no bearing on the current case. The judge agreed. Trina also attempted to bring her abuse to the attention of the courts and this information was considered inadmissible as evidence. Both of these women claimed to have had legal documentation proving that abuse had occurred; yet another example


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of denial of due process (see Cuthbert et al., 2002; NOW, 2002). These women’s experiences are similar to research that finds that fathers are not subject to punitive measures in family court if they have perpetrated violence against their wives or girlfriends (Kernic et al., 2005). The lack of attention to allegations of IPV in custody cases may be due in part to court officials’ lack of knowledge about these types of cases (Jaffe & Gartner, 1998; Morrill et al., 2005) or to gender bias in the courts (Neustein & Lesher, 2005; Rosen & Etlin, 1996; Zorza & Rosen, 2005). The mothers in this study expressed the belief that they were the recipients of gender biased treatment. The women also talked about activities that their ex-partners were involved in that should have labeled them as unfit parents in court, yet this information was not admitted because the men had attorneys that were able to get this evidence dismissed. For example, Wendy, a mother of two, lost custody of her two children because of her cocaine habit. Yet, her ex-husband was using cocaine and was selling methadone. This was documented by the police and the FBI, but was not admitted into the court hearing. Wendy felt that she was punished for her drug use because she was a woman, and because her husband ‘‘accused her of drug use before she could accuse him.’’ Her experience is reminiscent of gender bias that exists in the criminal justice system’s views of female deviants. Women who participate in criminal or deviant behaviors are discussed as double deviants due to their failure to comply with social expectations of femininity (i.e., crime commission is part of a man’s world, not a woman’s) and in this case, social expectations associated with motherhood (Schur, 1984). Anita and Lenore also spoke of their ex-husbands’ drug use. Anita was surprised when the court awarded her ‘‘drug addict ex-husband’’ custody since he had a history of arrests for drug use and abuse, which was discussed during the trial. Lenore’s ex-husband had been arrested for possession of 7 kilograms of cocaine and spent one night in jail. Other than that, he did no time because he had information on some ‘‘dirty cops.’’ This information was not admitted into her custody hearing, and her ex-husband received custody of their son. It is important to note that the women’s experiences in court were not related to their race. In other words, African American women and Caucasian women had similar experiences. These examples of denial of due process, corruption, and gender bias all demonstrate the institutional abuse that women experienced at the hands of the family court. Not only had the women been victimized in their


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intimate relationships, they were victimized by the system. After the custody decision the women hoped that the abuse would end. This was not the case.

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Post-Custody Abuse After custody was awarded to the fathers, many of the women (n ¼ 12) were further subjected to abuse by their ex-partners, as were their children. This abuse manifested itself in both physical and nonphysical forms, including stalking, threats of physical violence, emotional abuse, and manipulation of their relationship with and access to children. Debbie documented physical and emotional abuse during her marriage. After her daughter started living with her ex-husband, Debbie still experienced occasional emotional abuse: Remember I told you he’s a verbally and emotionally abusive person? I used to be able to, even though I left him, he could get me going like would put my nickel in the carousel and it would go round and round and round. I learned that, to just create good boundaries. Healthy boundaries for myself. And at the first hint of him becoming emotionally or verbally abusive to me or bashing my character, at the very first hint of it, the conversation is over. Good bye. Period. I used to argue with him and let him . . . and he would still have control over me. It was as if we were still married kind of thing. You know? But I have learned over the years . . . like I say, we’ve been divorced for over 10 years, so, to just say no. That’s it. So he has learned too that I’m not going to tolerate much more than a certain amount. He knows when he’s gone past that line that there’s no more conversation happening. Rachel’s daughter had been living with her ex-husband for several years and she had endured both emotional and verbal abuse during this time. The most painful form of abuse discussed by Rachel was her ex-husband’s manipulation and denial of visitation. Rachel claimed that her ex-husband used her daughter ‘‘as a weapon to get what he wanted,’’ as a way ‘‘to punish’’ Rachel. Rachel gives the following as an example of this abuse: Over the years he really used my daughter to get at me. Like one instance I had been married for a while to my second husband


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and I was pregnant with my son. I couldn’t tell him that I was pregnant because he told me that I had better not have any other children because how would my daughter feel? How would she feel knowing that you didn’t care enough to raise her but you would have other children and raise them? I really wanted another child. So I had got pregnant with my son but we had to hide it until I was like seven months pregnant because he [her ex-husband] wouldn’t have let me see Jessie anymore. Rachel further discussed how her ex-husband made it very difficult for her to see her daughter. During the Christmas of her pregnancy with her son, her ex-husband attempted to deny her Christmas visitation with her daughter. Rachel recounted the incident, ‘‘So you know he got me on the phone and was just really so mean and badgering me to the point where I was sobbing hysterically and he stated that he didn’t think it was fair for me to have her.’’ In the end Rachel did convince her ex-husband to allow her the visitation, but the emotional scars from that encounter remained. Maggie’s ex-husband would regularly abuse her emotionally when they communicated. Maggie stated, ‘‘He loves to put me down and ridicule me like I’m the bad person.’’ Her ex-husband also denied her the possibility of communicating with her sons in person and on the phone on numerous occasions: I call over there and for the longest time he wouldn’t acknowledge me calling. Or he’d say, ‘‘don’t call over here you can’t talk to the kids.’’ For a long time that went on. Last year’s the only time he let me talk to them on their birthday. Mo was also being denied access to her children. Her ex-husband lived with her children in another state and refused to give Mo their phone number or their address. Because she had no way of contacting her children, the children would have to call her using a calling card. The phone calls gradually diminished over time. Mo was quite distraught when she discussed this issue. Crying, Mo stated: It was like every week that I was hearing from them. And then it became two weeks and now it’s like once every month if I’m lucky. So . . . it’s now been three weeks since I’ve talked to them last. And that’s hard, you know? Not hearing their voices, you


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know? Wondering if they’re thinking of me or if they’ve forgotten . . . I know they haven’t forgot about me . . . but I just can’t hear their voices everyday.

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Trina’s ex-partner would call and harass her on the telephone: He’ll call me from work, he do harass me. He harasses me. But he don’t harass me in front of the kids. He’ll call me on the phone and he’ll talk junk over the phone. Or he’ll show up at my house in the middle of the n ight. Or he’ll call me in the middle of the night. I can be dead asleep and the phone rings at two in the morning. Some days he’ll just show up and knock on the door. In the middle of the night. I feel like he thinks more or less he don’t want me but he don’t want nobody else to have me. Other mothers were physically abused or received threats of abuse from their ex-partners. Jean, a mother of three, was one of these mothers. Jean had been threatened by her ex-husband on numerous occasions. One instance that Jean recounted involved visitation. Jean had asked if she could keep her daughters for an hour extra because it was the Easter holiday. Her ex-husband told her ‘‘no’’ and that if she did not return them on time that he was going to ‘‘kill her.’’ Because incidences of this nature had occurred before, Jean tape recorded the conversation and took her ex-husband to court for this episode. Similarly, during a visitation attempt, Sherri’s ex-husband pushed her down the stairs because he did not want her to take her child. Some mothers talked about abuse that their children were enduring at the hands of their ex-partners. Grace, for example, discussed how her son never wanted to go back to his father’s home after she had visitation. Her son would tell her of instances where he was being emotionally and physically abused by both his father and stepmother. As a result, her son still wet the bed at the age of ten. Gloria’s daughter was being physically and sexually abused by her ex-partner. As previously mentioned, this abuse had been brought up in the custody hearings, but was dismissed by the judge. Gloria had substantiated proof from doctors that this abuse was ongoing and was preparing to call children’s services in regard to the situation. At the time of the interview, Anita’s son had been removed from the care of his father and was placed in a foster home because of documented


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physical abuse. Anita was unable to get custody of the son because she was financially unable to care for the child. Other mothers feared that their children were being abused by their ex-partners but had no substantiated proof. Maggie, for example, feared that her youngest son was being abused because he would come to her home with bruises and on one occasion a black eye. Roberta and Debbie were afraid that their ex-husbands were verbally abusing their daughters, much like they did when they were married. By their own admission, the abuse, or belief of the abuse of their children, was more difficult for the mothers to endure than their own abuse. The women’s experiences of abuse are similar to previous research that documents the abuse that women and children endure after fathers are awarded joint custody, primary custody or visitation. Shalansky and colleagues (1999) cited continued threats to women and children’s well-being, as well as actual emotional and physical abuse after the close of custody disputes. These researchers also found that women were more likely to relinquish legal custody to children out of fear of the abuser.

SUMMARY The findings of this study increase knowledge about the significance of violence and abuse in the context of child custody disputes at both the individual and institutional levels. The abuse of women, and in many instances children, started during the mothers’ intimate relationships, was contributed to by the family court system, and continued after ex-partners received custody of children. During their intimate relationships, violence was physical, sexual, and emotional in nature. Upon entering the family court, women experienced institutional abuse that included denial of due process, ignoring allegations of family violence, and the dismissal of other criminal behaviors (e.g., drug use, drug sales) performed by their ex-partners. After the custody decision, many of the women and children were still subjected to physical and emotional abuse by the children’s fathers. While the findings of this study are similar to previous research on child custody and IPV, this study is unique because it provides in-depth qualitative accounts of women’s experiences from their point of view.


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The findings from this study came from 16 women’s experiences in northeastern Ohio. While this study does not contain a generalizable sample of noncustodial mothers, I would like to point out that these women were not mothers selected from facilities that cater to women who are victims of violence. These were women who were found in the community at large. This indicates a problem that is much larger in scope. In fact, recent representative studies have also found abuse to be prevalent in custody situations (see Kernic et al., 2005; Neustein & Lesher, 2005). This is a social problem that must be addressed through policy and programmatic changes. When children are being abused by their custodial parents, the mental health outcomes are enormous. Children may experience depression, low self-esteem, sexual promiscuity, anxiety, and attempts at suicide (Brown, 1999; Rudd & Herzberger, 1999). Children who witness their mother’s abuse have behavioral disturbances, poor academic performance, and are more likely to perpetuate the cycle of violence (Cummings, Pepler, & Moore, 1999; Ehrensaft et al., 2003; Gleason 1995). Mothers in this study reported negative attitudes toward the court process and also discussed depression and anxiety that was a result of this triad of abuse. Because of all of these negative outcomes, it is imperative that the system better addresses claims, both undocumented and documented, of family violence. One suggestion is to hold judges accountable for disregarding allegations of family violence. If this information is made public by victims and advocates within the system, judges may be more likely to pay attention to this situation, especially since judges are elected officials and would not want their re-election chances compromised. Judges should also be made to institute complete investigations by the National Council of Juvenile and Family Court Judges – or an equivalent group – in an effort to determine whether a child has been exposed to IPV. Court officials must undergo continuous education regarding the identification and handling of cases involving IPV and child abuse. To better assist women during custody disputes, programs must be instituted that provide women with knowledge about family court processes and resources. These programs should provide women with knowledge about court bureaucracy as well as how to obtain legal counsel. It would be beneficial if women who were representing themselves were provided a court advocate who could


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walk them through the custody hearing process. The creation of on-going programs that monitor relationships between ex-partners after custody proceedings have ended would also be useful. Some of these programs exist, but they are short term programs that have had questionable success. The ability to hear women’s experiences in their own words was a strength of the current study. At the same time, the lack of diversity in the sample posed some limitations. In particular, because of the lack of social class and race=ethnic diversity in the sample, it was difficult to examine the experiences of women from different social backgrounds in relationship to their experiences of domestic and institutional violence. The women were all in lower social class positions during their custody disputes, which did not allow for exploration of social class differences in court experiences. The majority of the sample was composed of white women (n ¼ 12); thus, racial differences were also difficult to surmise. Future research should strive for a more diverse sample of women of color, sexuality, and social class so that substantive comparisons can be made. Longitudinal studies of women’s experiences pre- and post-custody would also be useful in understanding the trajectory of abuse. Studies that evaluate victims’ experiences with court personnel during the custody process as well as studies that evaluate court personnel’s’ knowledge about cases involving IPV and child abuse would also help us to better understand if officials are serving the best interests of mothers and children. As can be seen, much research is still needed in the area of child custody decisions and family violence.

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SUBMITTED: January 15, 2007 REVISED: July 20, 2007 ACCEPTED: October 20, 2008


When Battered Women Lose Custody-Bemiller