Kendra Saathoff*

In family law court, custody proceedings can be made difficult by a history of domestic violence between the parents. Ultimately, judges’ interpretation of demeanor influences their fact finding and can lead them to determining domestic violence has not occurred when it has, or that it is not relevant to their determination of custody. The “friendly parent” doctrine then can allow judges to act on their demeanor-based biases and favor the abuser in their custody determination, because of a survivor’s demeanor and subsequent inability to be a “friendly parent.” Family law court is thus organized in a way to exacerbate the effects of domestic violence unless the court takes specific protective actions.

Though there has been a shift in requiring judges to take into account a history of domestic violence when making custody determinations, not all judges give that history the weight it should have in their decisions. Now, all U.S. states have changed child custody laws to include domestic violence as a factor that judges have to consider in determining custody, and about half have created a rebuttable presumption that an abuser will not have sole or joint custody. While these have been important strides in furthering protections for survivors and children in family law court, just because legislation has changed does not mean practice in the field has changed, with many judges unwilling to make findings of domestic violence in family law cases. Even when required to take into account a history of domestic violence in custody determinations, there is still much room for judicial discretion, which can be detrimental to survivors.   

In addition to judges’ hesitation to incorporate a history of domestic violence into their custody determinations, abusers often manipulate court processes to their advantage, posing further barriers for survivors. Mediation’s egalitarian goals cannot undo years of abuse and resulting reinforced behavioral patterns. Throughout the relationship, the survivor has been conditioned to relent, compromise, and conform to be safe. This learned pattern of dealing with their abuser cannot be easily broken, especially in processes like mediation and litigation that both require compromise. Abusers can also exploit the litigation process to further manipulate survivors. For many abusers, they know litigation is often the only way left for them to stay in contact with their victims and they use it to continue abusing them. Many often also utilize the lengthy litigation process to financially drain the other party.

Judges’ perception of demeanor can affect whether they incorporate a history of domestic violence in their judgments. Judges use their credibility determinations to decide parenting time, and because of how trauma can affect a survivor’s demeanor in court, abusers can be seen as more credible and trustworthy. This can mean that judges do not incorporate a history of domestic violence into their determination of custody – and even if they purported to, they oftentimes failed to and instead tended to side with abusers because of their more believable demeanor. Abusers can present in court as charming, charismatic, likeable, reasonable, generous, and even flexible. When judges listen to abusers in court, they are often swayed by their accounts of events, which, in contrast to the survivors’ accounts, seem reasonable and rational, and thus more credible. Trauma can cause survivors to act in a way that seems inappropriate or odd to others, especially judges. “Many domestic violence survivors ‘may present as angry, distrustful, and suspicious with all professionals related to the court proceedings.’” This bias favoring abusers can result in a failure to find that domestic violence occurred and therefore abusers getting more parenting time and more opportunities to continue abusing the other parent.

Further, the parental alienation theory has been used by abusers to claim that the survivor manipulated the children into disliking the abusive parent. This theory has been widely discredited and should not be admissible in court, but that doesn’t stop abusers from claiming it, and with their believable demeanor, from many judges believing it. Abusers commonly assert that the survivor is claiming instances of domestic violence to alienate the abuser from their children, further challenging the credibility of survivors and contributing to judges’ incredulity at claims of a history of domestic violence. Judges have still utilized this theory in making determinations of custody; in one case in Louisiana, the court relied heavily on a journal article about the parental alienation theory, quoting, “[t]he alienated parent typically is a ‘good’ parent who has no history or physical or emotional abuse of the child, and while there may be some ‘kernel of truth’ to the child’s complaints about the rejected parent, the child’s grossly negative views and feelings are a significantly distorted and exaggerated reaction.” Some courts are still willing to implement this psychological profile and believe that when a child speaks negatively about a parent, it is not due to a history of domestic violence but from a parent attempting to manipulate their children, therefore adding to disbelief of a history of domestic violence. This foundational theory, though now discredited, shows how family law court is built upon disbelieving the survivor, and contributes to judges’ today refusing to believe a survivor’s attestation of a history of domestic violence.

Finally, the “friendly parent” construct allows judges to act on these biases stemming from differences in demeanor and their unwillingness to include a history of domestic violence in their determinations. The friendly parent concept “is codified in child custody statutes requiring a court to consider as a main factor for custody which parent is more likely to allow ‘frequent and continuing contact’ with the child and the other parent, or which parent is more likely to promote the child’s contact or relationship with the other parent.” This is more difficult for parents who are survivors of domestic violence and who believe their children are more at risk with the abusive parent. Therefore, in domestic violence cases, a survivor of domestic violence who attempts to limit contact with an abuser may be deemed unfriendly, and punished for their protestations against parenting time with the abusive parent. A survivor’s unwillingness to cooperate and be “friendly” may affect a judge’s interpretation of their demeanor. Judges’ interpretation of demeanor influences their fact finding and can lead them to disbelieve allegations of domestic violence. The “friendly parent” doctrine then determines the consequences of the biased findings by giving judges a statutory reason to act on their demeanor-based biases and favor the abuser in their determination, because of a survivor’s demeanor and subsequent inability to be a “friendly parent.”

Ultimately, family law court exacerbates the effects of domestic violence. Judges’ interpretation of demeanor influences their fact finding and can lead them to determining domestic violence has not occurred when it has, or that it is not relevant to their determination of custody. Parties’ demeanor is affected by the abusive parent’s ability to use the legal system to continue to manipulate the other parent, the effect of trauma from domestic violence, and foundational theories such as the parental alienation theory. Then, the “friendly parent” doctrine then can allow judges to act on their demeanor-based biases and favor the abuser in their custody determination, because of a survivor’s demeanor and subsequent inability to be a “friendly parent.” All of this leads to judges, though now required to incorporate a history of domestic violence into their custody determinations, refusing to do so and acting on their demeanor-based biases, leaving survivors just as isolated as they were in the abusive relationship.

 

*J.D. Candidate, Class of 2022