Domestic Relations Resource Guide - Section II: Domestic Violence

Parenting decisions are complex, especially when domestic abuse is raised in a parenting dispute. When there is a history of domestic abuse, child contact is the most common context for re-assault during the post-separation period. [Stark, Evan. “Rethinking Coercive Control.” Sage Journals, Vol. 15, Issue 12 (2009).]

Common misconceptions in parenting decisions:

• Joint decision-making is the best.

• Parental involvement is safe for both parents.

• Parents are child-focused or will be if permitted joint decision-making.

• Abuse to the parent is unrelated and does not impact the children.

1. Use of Screening Tools and Lethality Assessments

   1. What Screening Research Says

      • Domestic abuse is often undetected in child custody disputes. [Johnson, Saccuzzo, and Koen. “Child Custody Mediation in Cases of Domestic Violence: Empirical Evidence of a Failure to Protect.” Sage Journals, Vol. 11, Issue 8 (2005); Holtzworth-Munroe, Applegate, and Beck. “Detecting Intimate Partner Violence in Family and Divorce Mediation: A Randomized Trial of Intimate Partner Violence Screening.” Psychology, Public Policy, and Law, Vol. 17, No. 2, 241-263 (2011)]

      • Practitioners who do not utilize systematic screening methods tend to under detect domestic abuse. [Holtzworth-Munroe, Applegate, and Beck. “Detecting Intimate Partner Violence in Family and Divorce Mediation: A Randomized Trial of Intimate Partner Violence Screening.” Psychology, Public Policy, and Law, Vol. 17, No. 2, 241-263 (2011)]

      • Screening for physical violence alone is insufficient to detect coercive controlling behaviors and often fails to detect serious physical violence, sexual abuse, and threats to kill. [Beck, C.J.A., and Raghavan, C.(2010). Intimate partner violence screening in custody mediation: The importance of assessing coercive control. Family Court Review, 48, 555-565.]

   2. Lethality Assessment Factors
      Lethality assessment factors impact the allocation of parental rights and responsibilities. The factors provide an indication of how past or ongoing domestic violence heightens the risk of harm to the child and parents and may indicate a marked risk for future serious injury or homicide.

      These factors include:

      • Abuse during pregnancy

      • Access to firearms, other weapons, or ammunition (owns or has access to, recently acquired a firearm or ammunition, used or threatened to use a weapon on the other parent)

      • Alleged perpetrator's mental state (e.g., signs of depression, alcohol or substance abuse)

      • Animal abuse

      • Avoidance of consequences (alleged offending parent avoided significant consequences despite contact with the justice system)

      • Child abuse, allegation of abuse, kidnapping, endangering

      • Controlling behaviors

      • Escalating or changing violence

      • Jealous or obsessed with the other parent

      • Sexual assault, coerced, or forced unwanted sexual contact

      • Stalking

      • Strangulation

      • Threats or attempts to kill other parent or child

      • New partner

      • Unemployment

      • Non-biological children living in the home

      • Recent separation

2. Screening for Domestic Abuse Is Different Than a Lethality Assessment
   Screening is a process to determine whether domestic abuse is or may be an issue in a case. It attempts to detect the presence or absence of domestic abuse. Screening is not restricted to the items listed on a lethality assessment and does assess for lethality. It should be conducted periodically throughout the case.

   PRACTICE TIP:

   If a court adopts a domestic abuse screening protocol, the court should take into consideration safety, confidentiality, and due process. Screening should not be done from the bench, by affidavit, or under oath.

   A lethality assessment is a specialized process to determine whether domestic abuse presents a risk of future harm or death to an abused parent or partner. It is not a comprehensive domestic abuse screening but attempts to detect the presence or absence of risk factors. A lethality assessment does not screen for domestic abuse. The absence of a risk factor based on a lethality assessment analysis does not mean that the situation is necessarily safe.

   Note: There are no psychological tests available to determine if someone is a batterer or a victim.

   Additional Resources

   • Domestic Violence & Allocation of Parental Rights and Responsibilities Court Guide

   • Lethality Assessment Resources

3. Each Child's Experiences, Perceptions, and Responses Are Unique
   Exposure to domestic violence affects a child's:

   • Behavioral development (acting out, withdrawing, caretaking of battered parent, lying to avoid confrontation, nightmares).

   • Cognitive and attitudinal development (lower cognitive functioning, poor school performance, lack of conflict resolution skills, limited problem-solving skills).

   • Emotional development (anger, depression, shame, confusion, helplessness, self-blame).

   • Social development (isolation from friends and family, stormy relationships, difficulty trusting, poor anger management and problem-solving abilities, excessive social involvement to avoid home, bullying).

   • Physical development (somatic complaints, short attention span, anxious, tired, frequently ill, poor hygiene, regression in development, self-abuse, high-risk play).

   Children who witness violence and coercive control by one parent experience at least the same level of serious effects as those who were direct targets of the abuse.

   UNICEF, Behind Closed Doors: The Impact of Domestic Violence on Children (2006)

4. Understanding the Batterer in the Context of Parenting

   • Often sees children as objects to own

   • Wants to punish the other parent

   • So focused on the other parent that they neglect the needs of the children

   • More likely to physically abuse their children

   • Exposes children to ongoing domestic violence/conflict

   • Uses children to control the other parent

   • Continuously undermining the other parent

   • Creates chaos for the family by repeated court motions

   • Creates role model that perpetuates violence and abusive control in future generations

   • Emotionally abuses children and the other parent

   The batterer can be a good parent when the batterer:

   • Admits the abuse and makes attempts to change.

   • Has the desire to improve parenting skills and attempts to take the role as parent seriously.

   • Can be redirected to focus on the needs of the children rather than on controlling the other parent. [The Batterer as Parent, Lundy Bancroft]

5. Identifying Abuse
   Domestic abuse is often difficult to identify because of:

   • Stereotypes of abusers are wrong.

   • Abusers present well.

   • Abusers elicit sympathy.

   • Victims present poorly.

   • Victims are hesitant to describe abuse.

   • Effects of domestic violence are counterintuitive (e.g., children express love for the abusive parent; victim stays in the relationship with abuser).

6. How to Understand Allegations

   • Listen to what the victim or alleged abuser says.

     • Drill down when questioning (listen to what the victim says, ask about behaviors)

     • Assess for threat

     • Consider lethality factors

     • Consider the context of the incident and threat

   • Pay attention to how the victim and alleged abuser act (observe demeanor)

     • Demeanor of the alleged abuser

       • Attempts to present as the true victim

       • Claim inflexibility of the other parent

       • Appears vulnerable or attempts to engender empathy with the court

       • Unwilling to understand the other parent's perspective

       • Attempts to create alliances with third parties

       • Patronizes the other parent, attorney, court

       • Minimizes, blames the other party or excuses inappropriate behavior

     • Demeanor of abused

       • Difficulty in presenting evidence due to fear or cognitive impairments as a result of the abuse

       • Demonstrates inappropriate effects resulting from fear, depression, PTSD, or other responses to abuse

       • Appears anxious and unfocused

       • Appears numb, unaffected, or disinterested

       • Acts aggressive or angry when testifying

       • Shows signs of distress when listening to the abuser's testimony

     • Consider the behavior of parties in response to questioning

     • Focus questions on the alleged abuser’s behaviors, not legal conclusions

       • Not “Were you abused?” but “did the alleged abuser put their hands on you?”

       • Not “Were you raped?” but “Have you ever had unwanted or forced sex with the alleged abuser?”

7. Domestic Abuse and Custody Disputes
   Considerations for when domestic abuse arises in custody disputes:

   • Domestic abuse does not automatically end when the parties separate.

   • Domestic violence may overlap with child abuse.

   • Children are being exposed to an inappropriate role model.

   • The abuse works to undermine the non-offending parent.

   • Continuous litigation is a form of ongoing control.

   • Extreme cases may lead to homicide, suicide, or abduction.

   When considering best interest factors in R.C. 3109.04(F), also consider what lethality factors exist and how the abusive acts/behaviors relate to the best interest factors.

   • What are the domestic violence indicators?

   • What are the domestic violence considerations?

   The best way to protect children is to repeatedly assess the risk to the non-offending parent. That risk predicts the risk to the child.

   Questions to consider

   • Is the abuse an isolated incident or is there significant violence and coercive control?

   • Has responsibility been taken for abuse?

   • Is there ongoing treatment?

   • Does the child have protective factors?

   • Is the child at risk presently?

   • Has the child been traumatized?

   Additional Resources

   • Promoting Protective Factors for Children Exposed to Domestic Violence: A Guide for Practitioners

8. Parenting Orders

   1. Shared Parenting
      Shared parenting, which involves joint parenting time and/or decision-making, may be appropriate when:

      • A low risk of lethality to parent and child is indicated

      • No significant history of violence, abuse, or threats

      • If there have been violence or threats, the offending parent displays remorse

      • Lack of coercive control and substance abuse

      • Parents have demonstrated cooperation and ability to communicate

      • Parents put the child's need first

   2. Parallel Parenting
      Parallel parenting is a method of parenting where both parents have as little interaction with one another as possible. It can be successful when clear boundaries are defined. Decision-making responsibilities are allocated between the parents. It is appropriate when:

      • There is low-to-moderate risk of lethality to the parent and low risk of lethality to the child indicated.

        • Isolated incidents of violence, no coercive control

        • No current violence

        • Offending parent took responsibility

        • Incompatible child-rearing styles

      • Each parent has a positive contribution to make but direct contact with other parent creates acrimony.

      • Not appropriate for infants, very young children, special needs children.

      • Not appropriate if one parent poses a threat to the child or ongoing threat of violence to the other parent.

   3. Unsupervised Parenting Time with Safety Measures
      This is appropriate when the non-custodial parent poses a moderate to low risk of lethality to the custodial parent and child. The court will need to determine:

      • Whether overnights are permitted

      • Where pick up and drop off will occur

        • At school or daycare

        • Need an alternative plan for exchange

        • Need an agreed safe third person for exchanges

      • Who is responsible for transportation

      • Consider general language in shared parenting orders

        • No sharing of address and telephone numbers; how to communicate in case of emergency involving child(ren)

        • Relocation: Contesting the non-offending parent's move can be a way to continue court battles, consider whether the move impacts parenting

   4. Supervised Parenting Time
      This is ordered when the non-custodial parent poses a high to moderate risk of lethality to the custodial parent and child. The cost of supervised parenting time should be paid by the offending parent.

      • There should be clear consequences for missing visits or being asked to leave visitation centers.

      • Courts should make the offending parent accountable to the court without the input of the custodial parent or child (e.g., review hearings mandatory for the offending parent and optional for the non-offending parent).

   5. When to Suspend Contact
      Contact between the non-custodial parent and the child should be suspended when the non-custodial parent poses a high risk of lethality to the other parent and child. Decision-making and allocation of parental rights are awarded to the non-offending parent.

      This occurs when:

      • Severe current substance abuse or acutely mentally ill without treatment

      • Child distress

      • Court orders are disobeyed

      • Very high lethality indicators are present

      • Previous abuse of child or child abduction

      • Conviction for serious assault or attempted homicide of a family member

      • Child estranged due to past trauma

      Set goals for the offending parent to restore contact.

      • Counseling

      • Completing batterers’ intervention program or another recommended program

      • Signing HIPPA release to verify counseling and program completion

      • No further criminal issues

      • Random testing for drugs/alcohol with a prerequisite number of tests

      • Completing any terms of probation or court orders

      • Attending parenting class

      • Completing compliance docket or case management requirements

      • Allowing non-offending parent input on modification of parenting time

      • Incremental addition of contact by telephone, email, or video conference

      • No harassing or disparaging residential parent

      Considerations

      • Stair stepping plans if contact is supervised or suspended

      • Exchanges of the child:

        • Occur at a safe location

        • Include details on time and location

        • Who may be present

        • Allocation of cost, if necessary

      • Parenting time schedules, including holidays and days of special meaning, should be as specific as possible.

      • Communication

        • Between parents – restriction to written communication, use of a parenting app (e.g., Our Family Wizard), telephone calls limited to emergencies

        • Between parent and children – set parameters, follow language in existing protection orders or no contact orders

      PRACTICE TIP:

      Judicial officers should make sure that the language in parenting orders is specific with regard to parenting time schedules, exchange locations, communication methods, etc. to minimize confrontation and conflict between the abuser and the victim.

9. Use of Guardians ad litem, Mediation, and/or Parenting Coordination When Domestic Abuse Is Present

   1. Guardian ad Litem (GAL)

      • If the court is going to interview a child regarding their wishes or concerns with respect to the allocation of parental rights and responsibilities, the court may appoint a GAL or shall appoint a GAL if requested by a party. [R.C. 3109.04(B)(1)] If appointed, the GAL shall be present during the interview. [See Communicating with Children – In Camera Interviews]

      • Upon the request of either parent or upon the court’s own motion, the court may appoint a GAL for the child. [R.C. 3109.04(B)(2)]

      • Civ.R. 75(B)(2) provides that when essential to protect the best interest of a child, the court may join the child as a party defendant and appoint a guardian ad litem and legal counsel if necessary for the child.

      • Sup.R. 48 provides the requirements for those appointed as a GAL in all domestic and juvenile cases. [GAL responsibilities: Sup.R. 48.03; GAL training requirements: Sup.R. 48.04-48.05]

      For more information, See Third Party Stakeholders.

      PRACTICE TIP:

      Before appointing a guardian ad litem to a case where domestic abuse is alleged or present, consider asking whether the GAL has received any formal training on domestic violence. Encourage GALs to pursue educational opportunities in domestic violence and domestic abuse screening.

   2. Mediation

      • R.C. 3109.052(A) provides that in a proceeding for divorce, dissolution, legal separation, annulment, or the allocation of parental rights and responsibilities for the care of a child, the court may order the parents to mediate their differences on those matters in accordance with mediation procedures adopted by the court by local rule.

      • Sup.R. 16.21 directs courts to adopt a local rule allowing mediation, and if the rule involves mediation in domestic relations and juvenile court proceedings, the rule must prohibit the use of mediation in domestic violence cases pursuant to R.C. 2919.25, R.C. 2919.26, R.C. 2919.27, and R.C. 3113.31. Courts are not prohibited from using mediation in a subsequent divorce or custody case, even though the case may result in the termination of the provision of a protection order pursuant to R.C. 3113.31.

        • Local rules should establish procedures for encouraging appropriate referrals to legal counsel and other support services for all parties.

      • Courts that elect to use mediation shall do all the following with respect to alleged or suspected domestic violence or domestic abuse:

        • Establish screening procedures to assess the capacity of the parties to mediate.

        • Prohibit mediation when domestic abuse or domestic violence is alleged, suspected, or present unless all the following conditions are satisfied:

          • Screening is conducted, both before and during the mediation, for domestic abuse and domestic violence and for the capacity of the parties to mediate;

          • The person who is or may be the victim of domestic abuse or domestic violence is fully informed about the mediation process, right to decline participation in the mediation process, and of the option to have a support person, in addition to an attorney, present at the mediation sessions;

          • The parties have the capacity to mediate without fear of coercion or control;

          • The court has taken reasonable precautions to create a safe mediation environment for the parties and all other persons involved in the mediation process;

          • Procedures are in place for the mediator to terminate a mediation session if there is a threat of domestic abuse, domestic violence, or coercion between the parties;

          • Procedures are in place for issuing written findings of fact to refer certain cases involving domestic violence to mediation as required by R.C. 3109.052(A).

   3. Parenting Coordination
      “Parenting coordination” is a court-ordered child-focused dispute resolution process established to assist parties in implementing a parental rights and responsibilities order or companionship time order using assessment, education, case management, conflict management, coaching, or decision-making.

      If domestic abuse or violence is alleged, suspected, or present, parenting coordination may proceed only if all of the following conditions are satisfied: [Sup.R. 16.65]

      • Screening is conducted, both before and during parenting
        coordination, for domestic abuse and domestic violence and for the capacity
        of the parties to engage in parenting coordination;

      • The person who is or may be the victim of domestic abuse or
        domestic violence is fully informed about the parenting coordination
        process; the right to decline participation in the parenting coordination
        process; and, at the discretion of the parenting coordinator, the right to have
        any other individuals attend and participate in parenting coordination
        sessions;

      • The parties have the capacity to participate in the parenting
        coordination process without fear of coercion or control;

      • The court has taken reasonable precautions to create a safe parenting
        coordination environment for the parties and all other persons involved in
        the parenting coordination process;

      • Procedures are in place for the parenting coordinator to terminate a
        parenting coordination session if there is a threat of domestic abuse,
        domestic violence, or coercion between the parties.

      For more information, See Third Party Stakeholders

      Additional Resources

      • Assessing Allegations of Domestic Violence in Child Abuse Cases

      • Domestic Violence and Children: Questions and Answers for Domestic Violence Project Advocates