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Understanding the Impact of Violence on Children
Integrating the public policy to protect children with the custody
statute is not a simple affair

 By Toby G. Kleinman

Family Law

The author is a partner at Adler & Kleinman of New Brunswick. She
wishes to thank Patricia W. Cone, Ph.D., J.D., who works for the firm
full time, for assisting in the research and writing of this article.

Courts should employ a child-centered, protective strategy in child-
custody cases involving allegations of child maltreatment and
domestic violence, and such a strategy must be grounded in a complete
understanding of the impact of violence on children.

Issues of child physical, sexual or emotional abuse and domestic
violence frequently arise and remain during the pendency of custody
and visitation litigation. Courts are confronted with having to make
temporary awards of custody and orders regarding visitation, often on
little evidence, long before either party puts on its complete case.
Parents' constitutionally protected rights to due process and to
parent one's children may compete with the welfare of the children
and the need to balance the potential harms of erroneous decisions.

Public Policy Considerations

Numerous statutes make clear it is New Jersey's intention to
safeguard the emotional and physical welfare of its youngest
citizens. The express purpose of N.J.S.A. 9:6-8 (a) "is to provide
for the protection of children ... who have had serious [non-
accidental] injury inflicted upon them" ensuring the ...[t]he safety
of the children served shall be of paramount concern ... and to
assure that the lives of innocent children are immediately
safeguarded from further injury and possible death and that the legal
rights of such children are fully protected."

Under N.J.S.A. 9:6-8.34 "a parent or other person interested in a
child ... or [a]ny person having knowledge or information of a nature
which convinces him that a child is abused or neglected" may file a
complaint for protection of a child.

The trial court should provide protection in the form of limited,
supervised contact, or no contact on a temporary basis, even prior to
a preliminary hearing in those child custody/visitation cases as is
required upon a similar allegation under Title 9. See N.J.S.A. 9:6-
8.28 to 9:6-8.38. Thus, public policy considerations for preservation
of the emotional and physical health of the child may foreclose a
parent from co-parenting or having any contact with the potentially
offending parent or guardian. See N.J.S.A. 9:6-8.28 to 9:6-8.38.

N.J.S.A. 2C:7-1 recognizes the dangers posed to children by the
potential for recidivism by sex offenders and other offenders who
commit predatory acts against children and therefore creates the sex
offender registry system. N.J.S.A. 2C:24-4(j)(2) recognizes the
significant devastating effects on children when perpetrators of
sexual violence are parents of the child, as it makes it a crime of
the first degree if a parent "causes or permits a child to engage in
a prohibited sexual act or" other sexually prohibited and offensive
acts, where a stranger committing identical acts is subject to a
crime of the second degree.

N.J.S.A. 2C:25-18, commonly referred to as the Prevention of Domestic
Violence Act, declares in pertinent part that "domestic violence is a
serious crime against society ... that there is a positive
correlation between spousal abuse and child abuse; and that children,
even when they are not themselves physically assaulted, suffer deep
and lasting emotional effects from exposure to domestic violence."

In stark contrast to the aforementioned legislative policies is the
public policy enunciated by the Legislature in N.J.S.A. 9:2-4, the
statute governing judicial decision-making in child custody cases.
The considerations therein require a court to ensure "frequent and
continuing contact with both parents after the parents have separated
or dissolved their marriage" and declares "that it is in the public
interest to encourage parents to share the rights and
responsibilities of child rearing in order to effect this policy."

Although the safety of the child or parent from the physical abuse of
the other parent, history of domestic violence, if any, and parental
fitness are among the factors that must be considered by the trial
court in making a custody determination, the paramount concern for
safety of the child is conspicuously absent and may even appear to be
overwritten in the requirements as it regards custody and visitation
decisions.

The fundamental legal principle that laws be construed so as to not
conflict with each other requires a trial court to apply the
protective public policies to child custody and visitation cases
thereby ensuring that the public policy of the state is carried out.
Thus, when a parent's right to access to his or her child is in
conflict with the child's need for safety from that parent, the
child's need for safety trumps. See V.C. v. M.J.B., 163 N.J. 200
(2000) and In the Matter of the Adoption of a Child by P.S. and J.S.,
315 N.J.Super. 91 (App. Div. 1998).

Trial Court Process

Parents who allege victimization of themselves or their children
before or during custody or visitation litigation frequently run into
a wall of disbelief from the child protection system, legal system,
and even their own attorneys. Many victims of domestic violence will
not disclose their experiences or their fears for their children out
of concerns for retaliation by the batterer, shame, or a belief that
they will not be believed and might even lose their children.

Pursuant to N.J.S.A. 9:2-4, the trial court must determine the
custody/visitation plan that serves the best interests of the child
by considering a number of factors. Consideration of these factors is
mandatory.

The trial court may also consider any other facts or conditions
determined to be relevant to the unique facts of the individual case.
Upon the initial raising of child abuse or maltreatment allegations
to the trial court in a custody/visitation matter, the processes
required by N.J.S.A. 9:6-8.8 to 9.6-8.70 are not mandated. Numerous
protections afforded victims and children of parents who are victims
of domestic violence are not reiterated in the custody considerations
of 9:2-4. Nevertheless, the statutes are compatible when construed
with each other.

There are no specific procedures in N.J.S.A. 9:2-4 set forth for the
court to follow when allegations of child maltreatment are alleged in
a divorce action. But, the procedures set forth in N.J.S.A. 9:6-8.8
to 9.6-8.70 can be followed. The court has the authority to make
findings as to the occurrence of child maltreatment by a parent and
can make such findings at preliminary stages of a custody proceeding
in order to ensure the paramount safety of the child.

There is no reason for a court to treat allegations of child
maltreatment or domestic violence raised in a custody case
differently from those brought before it by the Division of Youth and
Family Services. The risks of harm to a child whose abusive parent
continues to have access are identical to the risks of harm to a
child whose circumstances are before the court under the auspices of
N.J.S.A. 9:6-8.8 and parts thereof.

If the same or similar sworn-to allegation made by a parent or
guardian would warrant the court's removal of a child from a parent
pursuant to N.J.S.A. 9:6-8.28, the identical remedy can be imposed by
the trial court in the context of a custody/visitation action. The
child's safety should be no less guaranteed. By construing the
custody statute in light of the principles and procedures outlined in
N.J.S.A. 9:6-8.8 to 9.6-8.70 and the domestic violence statute,
N.J.S.A. 2C:25-18, children will be assured more protection and their
best interest more certain.

N.J.S.A. 9:6-8.23 requires the appointment of a Law Guardian who is
specially trained, and paid for by the state under the auspices of
the Public Defender system. Unfortunately, at this time, a Law
Guardian cannot otherwise be appointed.

Under the custody provisions of the statute, proof of the occurrence
of child maltreatment or domestic violence is a subsidiary fact that
contributes to the court's conclusions about factors such as parental
fitness. These factors themselves are subsidiary findings that form
the basis for the trial court's determination of the ultimate issue --
the best interests of the child.

These subsidiary facts and the ultimate issue of best interests of
the child must be established by the preponderance of the evidence,
except when a parent moves for termination of visitation between the
child and the other parent. See Cosme v. Figueroa, 258 N.J.Super. 333
(Ch. Div. 1992).

Domestic Violence

Concerns of child abuse and domestic violence are not less likely to
be unfounded when first raised in the context of custody/visitation.
See Peter G. Jaffe & Robert Geffner, "Child Custody Disputes and
Domestic Violence: Critical Issues for Mental Health, Social Service,
and Legal Professionals," in Children Exposed To Marital Violence:
Theory, Research, and Applied Issues (George W. Holden, et al. eds.,
1998).

Protections against domestic violence do not end because someone is
in a custody or visitation dispute. In fact, domestic violence
restraining orders once granted cannot be removed by motion of an
abuser without going before the court and demonstrating good cause
for dissolving the order.

Even if a victim seeks to withdraw a restraining order, she must
prove to the court that her request is voluntary and not under
duress. See I.J. v. I.S., 328 N.J.Super. 166 (Ch. Div.1999).

To ensure the domestic violence aspects of our public policy are
carried out, it is irrelevant whether domestic violence is raised
before, during or after a divorce. Whenever domestic violence is
found, a court can never lose sight of the fact that each time the
parties are before it, there is a perpetrator and a victim.

The right to due process does not alter the basic fact that a victim
and perpetrator are before the court, even long after a restraining
order has been granted. There is no distinction made in our law
between the effects of harassment and the effects of physical
battering on adult or child victims. It is the public policy for the
court to give maximum protection to all victims of domestic violence.
N.J.S.A. 2C:25-17.

The court is required to consider a parent's ability to communicate
and cooperate in matters relating to the child. N.J.S.A. 9:2-4. These
requirements are incompatible where there has been domestic violence
and child maltreatment. See Jaffe & Geffner.

This is true pendente lite until all of the facts can be heard and
ruled on by the court. Because the custody statute makes no specific
reference as to how to integrate domestic violence with the public
policy of protection of children and victims of domestic violence, it
is possible for the court to disregard the domestic violence policy
considerations and their implications for the litigants. To protect
these victims, no direct communication between a victim and her
abuser is appropriate and should not be required.

Construing these statutes as compatible also requires integrating
domestic-violence-sensitive knowledge and language by the court, not
just at a domestic violence hearing, but even years later as these
matters may continue to be before the courts. So, for example, it may
be ordinary for a judge in a custody/visitation dispute to attribute
wrongdoing equally for engaging in divorce litigation, it is an error
to do so where there has been a finding of domestic violence.

When equal blame is attributed in the face of domestic violence, the
motivation of perpetrators to use child custody litigation as yet
another way to control and intimidate their victims is reinforced and
unwittingly sanctioned by the court. See Jaffe & Geffner.

No victim of stranger violence would be required to schedule
visitation or expected to speak with that individual to work out
anything at any time. Yet, picture a scenario where an abuser has
threatened to kill a domestic violence victim, or her children, and
later is seen as recalcitrant if she resists working out visitation
issues during a divorce. This is a daily occurrence in family courts
as judges wonder why a victim is still saying she is frightened when
there has been no incident of violence in a long time.

The language often used by judges flows naturally from the
requirements of our custody statute regarding equal access and other
provisions. It may also result from a bias that because violence has
occurred in a family setting that its impact is less severe or less
traumatic. When a court does this it is actually placing the setting
of the family ahead of the presenting issue, which is contrary to our
stated policy.

When a victim of domestic violence or a protective parent hears
admonishments by the court regarding failure to communicate with her
abuser about a child or her unwillingness to cooperate with
visitation plans she believes are dangerous to herself and to the
child, the victims hears the message that her victimization and that
of her child is not believed, or not worthy of the court's concern.

Under these circumstances, a victim may be inhibited and intimidated
and fail to present her actual concerns to the court. The perpetrator
hears the same admonishments to the victim, and may feel empowered.
The sum effect is to neutralize and disregard the victims' very real
experiences of violence and the effect of such violence on their
functioning, leaving victims at risk for further harm. See Jaffe &
Geffner.

Instead, the court should be reminded of the fact that perpetrators
frequently use custody/visitation as a continuing means of control.
Lenore E. Walker, The Battered Woman's Syndrome. (Springer
Publishing; New York, 2000.)

We sometimes hear divorcing parties in litigation over custody
referred to as warring parties. No criminal court would think of a
victim and her assailant as warring parties when in court, regardless
of how many years before the assault had occurred. A teller who
robbed a bank would never be told not to rob again and be allowed to
go back to work as a teller. Yet every day judges permit batterers
back at work as parents, requiring child victims to visit with a
parent who perpetrated domestic violence on their mothers.

A victim of harassment or assault by a stranger would never be
expected to have an ongoing relationship with her perpetrator. The
suggestion would be seen as absurd in the context of stranger
violence. It is just as unthinkable to require parents to agree and
cooperate, or to ensure frequent and continuing contact with both
parents, when there has been domestic violence -- but N.J.S.A. 9:2-4
makes no distinction.

A victim of violence in family court may be sanctioned if she fails
to send a child who witnessed this assault to visit with the
perpetrator. This is true even if the child does not want to go. This
happens, in part because the court has not integrated the language of
conflicting public policies.

More than sensitive language is required. The Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-29, gives courts the authority to order
a risk assessment when there are concerns about visitation between a
perpetrator and his children. The statute does not place a limitation
as to when a risk assessment of a perpetrator can be granted when
there has been domestic violence.

By integrating the provisions of N.J.S.A. 2C:25-29 with the broad
discretion afforded to the court in fashioning procedures in a
custody hearing, the court can order a risk assessment when
allegations of domestic violence and potential harm to the child from
visitation with the alleged perpetrator are raised. Such risk
assessments should be routinely ordered when there is a prior history
of domestic violence.

A similar approach should be used when the allegations concern child
maltreatment of any type since ongoing visitation between the
perpetrator of child abuse and the child victim can result in ongoing
victimization and intensified trauma.

The use of risk assessments during custody/visitation litigation when
concerns about maltreatment of children and the impact of visitation
on children are raised, even long after the violent act, would be
another way for the court to convey to parties its recognition of the
long term impact of domestic violence and child maltreatment.

Proof of parental unfitness requires not only establishing that the
parent engages in violent or threatening behaviors or cannot parent
because of a mental illness or substance abuse problems, but also
that "the parent's conduct has a substantial adverse effect on the
child."

The courts are required to integrate the knowledge of the impact of
such abuse on a child with the public policy of a child's safety as
the court's primary concern.

Accordingly, if the standard of proof is met, then the proof itself
should be sufficient to assume adverse effect. To do otherwise makes
a mockery of the clear and stated public policies.

Of the approximately 1 million reports substantiated or founded by
state child protection agencies each year, about 19 percent is for
physical abuse, 10 percent for sexual abuse, and 8 percent for
psychological maltreatment. See
http://www.calib.com/nccanch/pubs/factsheets/canstats.cfm. The
remaining cases involved neglect.

More than 80 percent of children were victimized by a parent or
parents. Experts in the field agree that much child maltreatment goes
unreported and undetected. See Stuart N. Hart, et al., "Psychological
Maltreatment," in The Apsac Handbook on Child Maltreatment (John
Briere et al. eds., 1996).

Experts also agree that all forms of child maltreatment -- physical
abuse, sexual abuse, neglect and psychological maltreatment -- harm
children in the here and now and potentially across their lifespan.
See David Kolko, "Treatment and Intervention for Child Victims of
Violence," in Violence Against Children in The Family and the
Community (Penelope K. Trickett & Cynthia J. Schellenbach eds.,
1998).

A growing body of research is demonstrating that the experience of
maltreatment not only harms the formation of psychological constructs
such as self-esteem, parent-child attachments, interpersonal
relationships, and so on, but fundamentally alters the developing
brain in ways that have far-reaching implications. See Bruce D. Perry
& Ronnie Pollard, "Homeostasis, Stress, Trauma and Adaptation: A
Neurodevelopmental View of Childhood Trauma," 7 Child & Adolescent
Clinics of North America 33 (1998).

Regardless of the form it takes, maltreated children receive the
message from their parents that they are unloved, unlovable,
worthless and exist only to meet their parents' needs. See Stuart N.
Hart.

For these reasons, it is critical that courts take actions to
minimize the risk of harm to children who come before them caught in
custody disputes. The first step is to give the benefit of the doubt
to the alleged victims and take actions to protect vulnerable
children. See Lenore E. Walker, The Battered Woman's Syndrome (2000).

Although visitation between a child and parent is considered to be a
fundamental right, this right can be and should be abrogated when the
evidence establishes clearly and convincingly that such contact poses
a real danger to the emotional or physical health and safety of the
child. See Cosme.

There is no known psychological profile of a parent who causes
physical injury to a child, and abusive parents are in every culture
and social strata of our society. Regardless of the background of the
particular perpetrator, procedures in place by the child protective
and domestic violence statutes should be required to be followed in
custody/visitation matters whenever these issues are raised by a
parent.

Sometimes child abuse is part of a pattern of family violence in a
home. The presence of compensatory factors, such as family and social
supports, may reduce the risk of physical abuse to a child. See Dante
Cicchetti & Sheree L. Toth, "A Developmental Psychopathology
Perspective on Child Abuse and Neglect," 34 J. Am. Acad. Child &
Adolescent Psychiatry 541, 544-546 (1995). But victims must initially
be believed and supported by the court with adequate protections
imposed.

If the measures imposed by N.J.S.A. 9:6-8.8 to 9.6-8.70 were required
to be used, then the appointment of Law Guardians with special
training on the representation of these children would be required,
any financial disequilibrium of the family would be less relevant and
the others issues in the family circumstance could be acknowledged
without putting the children at further risk.

While sexual abuse accounts for only about 10 percent of
substantiated or founded reports to child protection agencies
nationwide, these cases frequently garner a disproportionate share of
attention and resources. See
http://www.calib.com/nccanch/pubs/factsheets/canstats.cfm.

While much has been made in recent years of the supposed high
frequency of allegations of sexual abuse in child-custody cases,
survey research has demonstrated that such allegations are raised in
a very small percentage of contested custody cases; false allegations
occur at only a slightly higher rate in these custody cases than in
cases of sexual abuse in general. See Kathleen C. Faller, "The
Parental Alienation Syndrome: What is It and What Data Support It?" 3
Child Maltreatment 100 (1998).

In New Jersey, for the purpose of Family Court cases, sexual abuse of
a child renders the child an "abused child" when the abuse is
committed by or allowed to be committed by a parent, guardian or
other person having custody and control of the child. N.J.S.A. 9:6-8.9
(c).

Unlike other forms of child maltreatment, the perpetrator of sexual
abuse may already have or foster a relationship of trust and
acquiescence with the victim.

Because there is no way to predict which children will suffer to what
degree, and because the use by an adult of his or her inherently more
powerful position to exploit a child is wrong and a crime, prompt and
complete protection must be afforded to these victims. Protective
parents should not have to fear that a court will be skeptical
because issues of sexual abuse arise during litigation. The court in
a custody/visitation matter should integrate all of the protective
policies available whether or not a parent avails itself of filing a
N.J.S.A. 9:6-8.34 complaint.

Visitation between a child and parent is considered to be a
fundamental right that can be abrogated only when such contact poses
a real danger to the emotional or physical health and safety of the
child. See Cosme. Given the broad discretion of the court hearing a
child-custody matter, a wide array of potential actions are
available, including court-ordered risk assessments, supervised
visitation, no-contact orders, appointment of counsel for the child,
and so on.

All of these actions are consonant with the clear public policy of
New Jersey: protection of child victims of violence and maltreatment
must be the paramount concern of the courts. When courts further
integrate this public policy stance with state of the information
concerning the debilitating effects of exposure to violence and
maltreatment, the rationale for limited, supervised contact or no
contact between a perpetrator and his or her child victim becomes
obvious.

Psychological research has shown the detrimental nature of contact
where a child has been emotionally, physically or sexually injured by
a parent, at least until the child is healed and feels fully
protected and safe. It is only with the actual implementation of all
of New Jersey's policies designed to protect children, together with
the vast knowledge available to our courts, that childerns' best
interests will be protected in the context of custody and visitation
disputes.



 

 

 

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