The best interest of the child is the guiding light for any judge in a family law case involving children, regardless of the endless complexities that must be sorted out. Cases involving domestic violence are no exception. Any family law attorney can share numerous accounts of divorces or custody disputes where the adults involved start to lose sight of the bigger picture, the kids. It is best to ensure regular reminders are given that the lives that will be most impacted by the trauma of family litigation are the kids. Everyone involved in family law cases should keep this in mind, especially the attorneys who assist in counseling their clients. Time and again, throughout each phase, all advocates should be underscoring the importance of familial relationships.
At the outset, we need to be clear that the terms used for children’s representatives and the statutes and rules that govern their roles vary greatly among jurisdictions, sometimes even among judges in the same jurisdiction. This article sets out general information, but if your child has a representative in your case, you should always ask your lawyer or the judge to explain the specifics involved in your case.
As a young attorney and throughout my legal and judicial career, I have focused on child welfare law, including a Board Certification by the Texas Board of Legal Specialization (TBLS) and a specialist certification by the National Association of Counsel for Children (NACC). Having studied domestic violence, including policy, impact on families, and gaps in the law, under the remarkable Sarah Buel, during her time at the University of Texas School of Law, the continued honing of this expertise flourished into my legal and judicial experiences in child welfare law. In recent years the collision of these areas with the intersection of racial disparities and inequities for marginalized families has been the subject of my judicial focus. Through these intertwining aspects of challenges that families face, the best interest of the child still remains the undisputed priority in this area of law.
Domestic violence is not only physical abuse but includes various ways in which the partner using violence attempts to control the other partner. When these aspects of power and control play out in a family context, with children involved, additional layers of power and control come into play. The well-known Power and Control Wheel, created by the Domestic Abuse Intervention Project in Duluth, Minnesota is a helpful resource to conceptualize how power and control is used to perpetrate domestic violence. From one end of the wheel describing how the use of coercion and threats asserts power over a partner, to using isolation to keep a partner in control, this wheel clearly outlines that using children also often becomes a focus for a partner using violence over the other. One of the ways in which children are used by a parent using violence, power, and control over the other parent is the threat to take the children away. This is where the legal system becomes an aspect of the power and control dynamic. Often, the threat to take children from one parent has occurred over a period of time, so by the time attorneys and judges receive these families in our courtrooms, the survivor parent may well believe that the parent using violence, power, and control is making good on their threats. How attorneys advocate for their clients, the agreements that are made, and the limitations that we subject parents to, as it relates to their child custody and support orders, can potentially perpetuate the harm caused to a survivor parent or empower a parent using power and control. In every temporary orders hearing, review before the court, and evidentiary hearing, the overarching reality of how domestic violence has impacted the family, and each individual in the family, must be reiterated to prevent the legal system from being weaponized in these cases.
For example, when there is financial abuse, including control of one parent’s ability to work (or not work) outside the home, this can become an extraordinary factor in whether or not the legal system perpetuates the harm of the domestic violence dynamics. The parent who maintains and controls the finances may have access to legal counsel while the other parent may have been cut off from all financial resources and not otherwise have sustainable employment and is now forced to self-represent. In considering the inequities within the legal system itself, especially for self-represented litigants, this imbalance of resources can start the family law case at a disadvantage for the survivor parent. This parent then lacks the knowledge to advocate their position in a court of law. Attorneys and courts must recognize this imbalance within these family law cases to ultimately ensure a just and equitable outcome which is in the best interest of the child. Additionally, understanding each parent’s mental and emotional state of mind and what they have experienced to get to their day in court is necessary. Preparing for a hearing or trial where each and every detail of the family circumstances will be presented to the court is distressful in any situation and when there are expectations to flesh out and make sense of domestic violence within the family and whether or not each or both of the parents are safe and healthy caregivers for their children can cause a strained and dangerous situation to become harmful and even fatal. In these situations, with domestic violence present within the family, the best interest of the child also means the safety of each member of the family. Attorneys who have substantial fear of risk of harm to their client or the children in a family law case should be sure this information is made known to the court so that proper safety planning, escorts, and other arrangements can be made for the family, in and out of court. These hearings are often difficult, and counsel for parents and children taking part in these hearings should include healthy options afterward for self-care and processing what occurred at the hearing.
In domestic violence family law cases, the court may be presented with photographs, videos, offense reports, and medical records to prove physical violence and injuries occurred. Testimony from family members, neighbors, and friends are also commonplace when trying to prove emotional abuse including isolation, intimidation, threats, and gaslighting. Records of bank accounts, receipts, credit card bills, and paycheck stubs may show financial abuse or one parent’s ability to control the other parent, including whether or not they work outside the home, which also will provide evidence related to child support and spousal maintenance. In wading through this evidence, as a court, I am often considering where the children were in each instance of abuse purported to have occurred and if they were in the same vicinity of the parents. Direct exposure to domestic violence is usually the most obvious aspect that gets presented before the court, if it occurred. However, indirect exposure and the ultimate impact to the children is just as meaningful. These elements often give a bit more difficulty for attorneys to prove up in court when attempting to address the role domestic violence played within the family dynamic. Perhaps children were denied opportunities that would open the family up to greater community connection or children lived in a home environment where any misstep may cause an explosive response, even if not directed at them, but towards the other parent. This may be an incredibly stressful and unhealthy situation for children in the midst of development and growth. While less visible, these aspects of the child’s well-being are still vastly important to be considered in family law cases.
Much of the data regarding the impact of domestic violence on children considers the negative affects and health outcomes for these children. A 2003 published study concluded that 15.5 million children in the United States live in families in which partner violence occurred at least once in the past year, and 7 million children live in families in which severe partner violence occurred. Charles L. Whitfield et al., Violent Childhood Experiences and the Risk of Intimate Partner Violence in Adults: Assessment in a Large Health Maintenance Organization. 18 J. of Interpersonal Violence, 166–185 (2003). This is, understandably, a difficult topic to study but the necessity to bring this information into the courtroom is tremendously important in family law as the court must consider what is in the best interest of the child and how prevalent these situations may be for children including other factors in specific communities or cultures. Any unique characteristics of the family may also lend to other specific data or studies that may be helpful for the court to understand. While there are studies and data available, they are highly underused in family law litigation in a way that not only offers evidence of potential negative impacts but for purposes of prevention planning and supporting helpful orders for the family moving forward.
The Centers for Disease Control and Prevention (CDC) discusses adverse childhood experiences (ACEs) and prevention mechanisms through their resource fact sheet CDC VitalSigns: Adverse Children Experiences (ACEs): Preventing Early Trauma to Improve Adult Health (Nov. 2019). The CDC outlines that ACEs are potentially traumatic events that occur in childhood, which can include violence, abuse, and growing up in a family with mental health or substance use problems. The CDC further emphasizes that toxic stress from ACEs can change brain development and affect how the body responds to stress. Although ACEs seem to be a substantial factor in the development and well-being of children, it is not often that we see this discussion or argument occur in court. With so much that is known now about ACEs, legal argument that educates the court on the ways in which orders related to the family and parent-child relationship may prevent or reduce the potential for any child to experience potentially traumatic events is substantially impactful. Competency in the study of ACEs and child well-being must be a standard element of the family law attorney’s education. This use of data in support of requested relief draws clear lines showing how rulings and decisions of the court in the family law case can support and improve the well-being of the children subject of the suit.
The parent-child relationship between each child and each parent must be considered as its own distinct, significant relationship that deserves individualized consideration. This remains true even for the children of parents who have experienced domestic violence. The relationship with the survivor-parent is separate and distinct from the relationship with the parent using violence. Overall, for the relationship with either parent, it is healthy to see bonding, affection, care, and love. These are possible for the parent-child relationship in families with domestic violence and the presence of domestic violence in-and-of-itself does not create a presumption that these important aspects of the parent-child relationship are not present. However, domestic violence will impact each of those connections. In determining whether a parent is safe, healthy, and appropriate, I often emphasize in my court that I am looking to see examples of parents who model healthy relationships for their children. Without bias toward either parent, the ultimate concept of healthy relationship modeling is crucial to the type of considerations the court has to make. This may look different and require different approaches for the survivor parent in comparison to the parent using violence, power and control.
Being able to model healthy relationships, in the context of the survivor parent, may require support and resources being made available for that survivor parent. The child impacted by domestic violence may be internalizing concepts from that survivor parent related to boundaries, self-advocacy, self-esteem and understanding of personal safety. In a family law case, there may be the need to advocate for the survivor parent having access to the resources and tools that will put that parent in the best position to model healthy relationships. The argument for these supports and resources can be made in the context of the best interest of the child, as a support for a healthy parent-child relationship with that survivor parent. Likewise, but distinctly different, the modeling of healthy relationships by the parent using violence, power and control will require directly addressing the dynamics between that parent and the survivor parent due to the nature of their behaviors. Often times I have seen the parent using violence, power and control argue that they have never used violence against or harmed their child. These parents often present to the court what they believe to be a strong parent-child relationship, regardless of the domestic violence in the home. It can be a challenge to this belief when discussing the expectation of modeling healthy relationships which may make the supports and resources for these parents difficult to access and complete. Batterers Intervention and Prevention Programs (BIPP) and other programs for changing mindsets about power and control are imperative for these parents but some programs come with costs, troubling locations, or timing that create barriers for completion and are often extensive program requiring significant time commitments. Regardless of these obstacles, it should be understood that any presumption of completely excluding the parent using power, control and violence from any parenting time with their child should not be the default option in how the parent-child relationship is handled. The decision to exclude a parent from contact with their child should be considered specifically in the context of safety and well-being of the child.
It should never be lost on advocates that domestic violence in the home can have unexpected and unknown impacts on children. We can follow all the most trauma-informed best practices that are legally sound and still find ourselves at a loss. We focus often on the survivor parent or insistence on accountability for the parent using violence and it is quite easy to lose focus on the children. Even when we see what can be best described as success, with parents independently working to establish their own parent-child relationship, the nature of the human psyche is such that legal advocates are often ill-equipped to leave families in the healthiest of circumstances upon the conclusion of family law cases. Leaving parents with tools, resources and supports is often the best we can do. For the children involved we should be aiming to give them a voice, autonomy over their feelings, and an outlet for healthy discourse throughout their lives. Ultimately, working to assure adults involved with any child that has experienced domestic violence are supportive and modeling healthy relationships should be a significant factor of the legal outcomes in these family law cases. Even in all of these best instances, we have to remember, we may never be able to understand how each unique human, no matter how young, will internalize their life experiences.
From infancy through teenage years, children are developing and meeting various milestones so orders, supports, and resources should likewise be specific and individualized to the children in family law cases involving domestic violence. An infant who may be internalizing that their needs do not get met when they cry because of the dynamics between the parents will require distinctly different support from the tween who has to often call their grandparents when there is domestic violence occurring in another room of the home. For the infant, a child and family therapist may be able to support parents reinforcing their attentiveness to their baby’s needs while the tween may need their own Safety Plan so that they can feel safe at home. Child attorneys or guardians who are knowledgeable about child development within the context of the impact of domestic violence are extraordinary advocates to educate the court in preparing orders to meet the individualized needs of the children in family law cases. When parent attorneys advocate for Attorneys ad Litem, Guardians ad Litem or Amicus Attorneys, the competency of those advocates in the context of child development and domestic violence should be given special consideration.
In-chambers conferences for children with the court may also be an option in some jurisdictions. If this is an option, attorneys may want to consider various aspects of how those in-chambers conferences must occur to determine the benefit or harm such a conference could have on children who have experienced domestic violence. In some circumstances these types of conferences can be very helpful for children, especially older children, to have their voice heard and a sense of control over some aspect of their life, when legal proceedings about them are occurring. If these conferences must be recorded, either by court reporter or video, then the impact of such a process should be considered and discussed with the child and the parents. The best interest of the child should be a main factor for in-chambers conferences as well. If it must occur in a way that could increase the already tense and stressful circumstances for the child, the court should take measures to reduce this effect. Explaining to children what they can expect, allowing them to see the chambers space before the conference, having therapeutic toys, weighted blankets, or even therapy dogs present may also help. The hope is that the judge conducting a child interview will also be knowledgeable and competent in developmentally appropriate ways to speak with children and be trauma informed. However, in any case, since all children are unique, advocacy from the attorneys about how the in-chambers conference should occur and special considerations the court should make will better assure the experience is as best as it can possibly be for the child.
As family law and child welfare professionals, we tend to find a way to disconnect and assumedly relieve ourselves from the heaviness this subject matter brings. The reality is that we cannot escape the impact these cases have on us as well. The secondary and vicarious trauma that legal professionals experiences is real, especially in cases with violence. We must all take time to heal ourselves and rejuvenate our minds and spirits to continue being the advocates that do no more harm. I give so much thanks to the women of Texas Working at the Intersections for Safe Families (TWAIS), who were united through the efforts of National Center to Advance Peace for Children, Youth, and Families: Women Transforming Families. Having a group of likeminded advocates, good people, and true friends would be my advice to any and all attorneys working in this area of law. My hope is that every professional in this work has the same personal support system to keep them anchored, humbled, and well. Good people are needed to continue doing good work.
Domestic Abuse Intervention Programs, The Duluth Model, Power and Control Wheels.
National Center to Advance Peace for Children, Youth, Families, in partnership with the ABA Center on Children and the Law, and Futures Without Violence: Nicholson’s Four Factors for Judicial Consideration in Cases Involving Domestic Violence and Children, https://centertoadvancepeace.org/images/pdfs/nicholsons_four_factors.pdf.
Centers for Disease Control and Prevention, Violence Prevention.
