An abused woman can be vulnerable in family court if she comes in with unfounded expectations. Perhaps the most widespread myth is the belief that mothers are favored by courts in custody disputes, which stopped being true decades ago. It is true that for roughly the first half of the 1900′s the “Tender Years Doctrine” was influential, and mothers had some advantage in gaining custody of young children. (Prior to about 1900, mothers had no rights regarding custody at all.) But in the 1970′s the tide was turning back, for various reasons, and by the 1980′s fathers were winning at least joint custody in a majority of the custody battles they undertook, and winning sole custody more often than mothers, a situation that remains today. And the fathers who are taking advantage of this imbalance are largely abusive ones; researchers have found that abusers are twice as likely as non-abusive men to seek custody.
Why do abusive men turn up disproportionately in custody disputes? First, abusive men don’t do well at separating their own needs from those of their children, so they don’t consider how injurious it could be for the children to be taken away from the primary care of their mother, where they feel secure. Second, the abusive man is focused on power and control, and may ignore the harm he causes the children in his desperate race to settle old scores. And his lack of respect for the mother’s humanity, a centerpin of the abusive mentality, can permit him to believe that she is the one who will harm the children, not him. Occasionally, the abusive man’s main reason for seeking custody seems to be a desire to avoid having to pay child support.
Another common but mistaken belief is that a court would of course not grant custody to an abuser, especially a physical batterer. But the sad reality is that many judges say, “You aren’t together anymore, so his aggression toward you is no longer an issue. Does he beat the children? If not, there is no reason to curtail his relationship with them.” This is true despite the fact that almost every state has laws that say that domestic violence is relevant to custody and visitation disputes. Even in cases where the father has been physically abusive to the children, the mother may not have proof, or the judge may say, “Well, that only happened a few times, and he knows not to do that anymore.” Other judges conclude that the parents mutually abused each other, because the abusive man claims to be the victim.
Even — or perhaps especially — a mother whose children are being sexually abused by their father cannot assume that the court will allow her to protect them. In recent years, evidence is emerging that mothers who raise sexual abuse allegations in custody disputes run a serious risk of losing custody of their children to the abuser, a scandal that has been brought into the public eye by the documentary “Small Justice” and articles by journalist Kristen Lombardi. If you have concerns that your ex-partner is violating your children’s boundaries, be sure to read the section called “When You Have Concerns About Sexual Abuse,” for guidance on how to keep your children’s disclosures from backfiring against them.