· “The CPS system serves as [a] barrier to the reunification of children with nonviolent parents… The CPS systems should serve as a source of assistance for nonviolent battered mothers, rather than a source of punishment, as it often is today” (Daigle, 1998, pg. 292).
· Because of society’s lack of education and inclination to protect battered mothers and their children, oftentimes, communities’ children are either left unprotected or custody is granted to the abuser. Attorneys have recognized that allegers of abuse must prove beyond a reasonable doubt that the abuse occurred, and the clear and convincing evidence consists of more than the survivor’s testimony and medical records of the alleged abuse. Therefore, proving abuse in the court system as it exists today is almost impossible. Yet, children and adults alike are taught from when they are very young that they must contact the authorities if they are being abused, threatened or hurt in anyway. However, communities are not adequately prepared to receive these phone calls or handle their stories in courts of law, and survivors’ attempts to protect themselves by reaching out to community organizations often leaves survivors more vulnerable and placed in harms’ way. Several authors and researchers have recognized this failure and have called for a more coordinated community response effort in protecting battered mothers and their children.
· Children of battered mothers are “fifteen times more likely to be abused than children of women who are not domestic violence victims” (Daigle, 1998, pg. 288). Although various legal issues arise in the lives of battered women including protective orders, child custody litigation, domestic violence criminal charges, trespassing criminal charges, and child abuse allegations, the different proceedings, including coordinated care from psychological and medical services, are not coordinated in a systematic manner, and battered women and their children remain unprotected (Daigle, 1998).
· “No single social or legal service provider is responsible for this shortfall in services or for instituting change. The absence of intensive domestic violence services for battered women and their children in the CPS system is perhaps symptomatic of the long-term conflict between the movement to protect abused children and the movement to end violence against battered women” (Daigle, 1998, pg. 304).
· Domestic abusers are often capable of blaming the survivors of the abuse, either by blaming the wife as the first aggressor, or blaming the child as too young to adequately know if they were being abused. The ability of a domestic abuser to circumnavigate the legal system indicates that the legal system is not adequately prepared to handle the domestic and sexual abuser, who often manipulates the social and legal systems.
· The current legal system is also not concurrently and appropriately addressing the dynamics of domestic violence on the needs of the mother and the child, and the legal system often takes legal custody of the child away from the battered mother, “even if they have not committed a direct act of abuse or neglect, on the grounds that they have failed to protect their children from the same violence that they themselves could not successfully escape” (Daigle, 1998, pg. 290).
· Mothers who testify to the legal and social systems that they and their children are being abused by a father and spouse, face challenges and obstacles to receiving protection because the system’s first reaction is to punish both mother and child. Mothers that do act face losing physical custody of their children. Oftentimes, if a mother comes forward to report the abuse, and she is charged in a court of law for failing to protect her child, she could oftentimes lose parental rights to her children. Daigle reports that Texas courts support termination of a mother’s 14th amendment right to her child when she fails to protect her children, particularly in cases where fathers have abused mother and children (Daigle, 1998).
· “A failure to protect children is one of several allegations that domestic violence victims face… Any countervailing best interest arguments in favor of preserving a nonviolent battered mother’s parental rights have been invalidated by negating the second prong in the failure to protect context… [Courts often] terminate the parental rights of a mother who repeatedly witnesses the father abuse the daughter, even though she reports that he would beat her if she attempted to protect the child” (Daigle, 1998, pg. 296-297).
· Another challenge that mothers who have been battered with children face is denial from judges, attorneys and courtrooms that the abuse ever occurred. In order to justify the denial of the domestic violence, the mother is labeled as “delusional, unstable, with psychological disorders, or crazy” which furthers the rationality in the law’s eyes that the mother should not have custody of the children.
· “In order to support battered women’s efforts to protect themselves and their children, the CPS system should work to increase awareness of domestic violence issues among parties to CPS litigation and develop a coordinated community response to family violence through the provision of more direct services for battered mothers” (Daigle, 1998, pg. 313).
· However, opposing viewpoints from attorneys largely agree that a higher standard of proof must exist in order for a battered mother or a sexually abused child to win over their aggressor, and these attorneys also agree that if the higher standard of proof is upheld, the battered mother and child will not be harmed.
Constitutional Rights and the Sexual Abuse Stigma that Affects Child Custody Proceedings
· “States are facing a frightening surge in reported cases of child abuse. Specifically, there has been a dramatic increase in cases involving parents accused of sexually abusing their children” (McMahon, 1999, pg. 153). Although many researchers assert that a higher standard of proof of convicting accused parents of child sexual abuse will not affect the well-being of the child in any way, the research shows that children and battered mothers are not being protected by courts of law. McMahon examines a Supreme Court case, Santosky v. Kramer, to support her research (McMahon, 1999).
· McMahon examines Santosky vs. Kramer, a Supreme Court case that concluded that a higher standard of proof and evidence of allegations of child sexual abuse by one of their parents will not compromise the welfare of the child in any way (McMahon, 1999).
· “In protecting the child’s best interests, however, the accused parent’s due process rights are severely jeopardized. Accusations of sexual abuse, in the context of bitter matrimonial actions, require an accused parent to defend potentially unfounded allegations in family court with likely loss of custodial rights” (McMahon, 1999, pg. 155).
· This research suggests that the child’s well-being is not at stake, but the well-being of the accused is, therefore, the community must focus on the accused employment ability, economic status, liberty and social status in the community, rather than the safety of the child, and the continued unification of mother and child. McMahon’s research fails to acknowledge that it is usually the maternal figure that empowers the child to speak out against the sexual abuse they are experiencing.
· McMahon argues that while a parent is being accused of child sexual abuse by a child, there must be a clear and convincing amount of evidence to prove that the sexual child abuse does exist (not just testimony from the child), and because the accusation may result in loss of employment, economic status, liberty and social status, the parent being accused of child sexual abuse, the accused, is granted more protection in the due process of law, rather than the child. “The majority of states require that proof of child abuse and neglect be proven by a preponderance of evidence” (McMahon, 1999, pgs. 157-158). Oftentimes, the child is actually placed with the accused in the due process protection of the abuser. McMahon argues that this process does not compromise the welfare of the child (McMahon, 1999).
· “Due to the nature of the accusations, parents and families may be permanently scarred- by loss of employment, social status, and potential loss of physical liberty for the accused as well as by irreparable damage to the family unit- all of which are substantially different than those parents charged with non-sexual abuse or neglect. Accordingly, these parents should be afforded greater due process protection” (McMahon, 1999, pg. 158).
· McMahon’s research is an example of how patriarchal systems are reified in society, regardless is abuse is occurring or not. McMahon’s research is an example of how children and battered mothers become separated, unprotected, and oftentimes, more vulnerable to repeated incidences of abuse. More accountability from the states and Federal government needs to happen to ensure that the child and victim’s due process protection is upheld. However, any response that the state provides to an allegation of sexual abuse is in the U.S. is supported by Federal grants, therefore the Federal government must become more accountable for oversight of Federal funds to state supported programs that handle child sexual abuse claims, including local courts, legal professionals, and CPS.
· The Child Abuse Prevention and Treatment Act is “a mandate that each state report and respond to evidence of child abuse to receive certain grants” (McMahon, 1999, pg. 163). The Federal government does not regulate how a response is made, and if a response protects a child, mother or abuser. The Federal guidelines to ensure state funds to local governments merely mandate that a response is made, and protecting a child or not protecting a child is not stipulated or audited. “Some courts, however, have reasoned that raising the burden of proof might jeopardize the child’s safety and result in increased fiscal and administrative burdens” (McMahon, 1999, pg. 177). McMahon’s research suggests that protecting the child’s best interests often eclipses the parent’s right to protection. This opposing viewpoint fails to protect the child from sexual abuse, and fails to empower the mother of the child to support the child’s efforts in using his/her voice against the violence and abuse. McMahon’s research can be refuted by the research of Pyles who turns to react with socioeconomic strategies that empower the battered mother and child, rather than preserving the family unit, when domestic violence and sexual assault are present.
Promoting Economic Justice for Battered Mothers and Their Children
· The United States is a sexist society; therefore violence against women is prevalent in patriarchal cultures, particularly in the U.S. The interventions that have been put in place to help women who have survived violence have predominantly failed. There is a relationship between domestic violence and poverty, how community groups cannot adequately address the magnificence of the problem of domestic violence against women and the poverty that these women endure, and seeks to suggest more community development programs within the Department of Social Services, in hand with TANF, to help survivors of domestic violence to get back on their feet (Pyles, 2006). When survivors of domestic violence come forward with their stories, they are forced into a life of poverty, negating any concern for the survivor’s economic status, but concerning itself only with the accused, placing the survivor at greater risk.
· The system fails to intervene to address both poverty and violence, including the affects that the trauma and violence may have on a battered mother’s ability to find employment, successfully maintain employment, and have access to opportunities for higher education, vocational training, employment with insurance benefits that would address the medical and behavioral health needs of the battered mother and her children, economic stability, and access to more nontraditional forms of employment that would allow the battered mother to have a more protective role in her children’s lives. Access to adequate housing, as compounded by an underemployment factor, is also a challenge for battered women and their children after emerging from a traumatic event by a family member (Pyles, 2006). The mental health issues, after a battered mother and child experience or witness trauma, may be another cause for the battered woman to experience challenges in becoming economically self-sufficient. A more integrated approach to services provided to battered mothers and their children’s needs to be developed within the legal, medical, behavioral health, mental health and social service communities to more effective assist the battered mother to become healthier and more self-efficient for herself and her children.
· Legal, medical, behavioral health and service programs that provided training to employees of organizations that attempt to assist battered mothers and their children by specially trained domestic violence advocates or liaisons are shown to increase positive outcomes for their clients (Pyles, 2006). “Strength-based, compassionate advocacy that provides social support” as well as workplace support has been found to be beneficial to the battered mother and children experiencing economical hardships (Pyles, 2006, pg. 63).
· While Pyles addresses a factor of domestic violence that is pervasive in most cases, poverty, this research fails to offer solutions that empower the woman or mother. It also fails to address the battered mother, as opposed to the battered woman. It also makes suggestions to develop more community based groups in conjunction with TANF, a Department of Social Services program, yet asserts that the community group programs that have been put in place have failed. Community groups are failing to protect this vulnerable population of society, and attaching any solution to the Department of Social Services, which has failed numerously to adequately to protect battered women, and her children.
· Whereas, Pyles fails to address the needs of children after witnessing the abuse of their mother, or being survivors of abuse themselves, Wilson, R.F. (2001) addresses how children become more at risk if a mother or battered woman chooses to pursue safety.
Why Children of Divorce are at Higher Risk for Sexual Exploitation and Assault
· Wilson examines whether court rooms and judges in family courts can effectively ascertain the dynamics of child sexual abuse in considering child custody (Wilson, 2001). The article asserts that when fathers are awarded custody despite risks of child sexual abuse, the argument withstands criticisms based on the research that regardless of parental custodian determination, every child is at an increased risk for being a victim of child sexual abuse. Wilson asserts that we must recognize as a society that our families are no longer like Ozzie and Harriett, and unless we recognize that there are mitigated risks involved with broken and nontraditional families, we will never begin to address the issues of child sexual abuse.
· Wilson questions whether or not court rooms can adequately assess the risks of child sexual abuse in making child custody determinations in family courts across the U.S. Wilson’s evidence suggests that there is an overwhelming empirical connection (seventy social science studies) between the sexual child abuse of girls and family divorce/disruption. Wilson argues that family courts cannot adequately address the risk of child sexual abuse in making child custody determinations because the legal profession refuses to address the research of increased probability of sexual abuse after the separation/divorce. Wilson suggests three child sexual abuse prevention strategies for parents to take control of lessening the risk of their daughters becoming child sexual abuse survivors. Wilson argues that if judicial figures understand more clearly how divorcing families function, as opposed to the traditional American nuclear family, judicial figures can more intelligently address child custody determinations in order to lessen the risk of young girls and women being sexually abused. “Because divorce magnifies a girl's sexual vulnerability, the law has the opportunity to address this risk proactively in child custody determinations, rather than reacting to abuse, as it now does” (Wilson, 2001, pg. 255).
· “Given the powerful tug that parents feel to act in the interests of their child, awarding sole custody misses a critical opportunity to empower the noncustodial parent to shield his or her child from the threat of molestation. To capitalize on this inclination, a court need only award joint custody, now an option in more than half the jurisdictions in the United States. Alternatively, courts could preserve the noncustodial parent's authority to consent to preventive education for his or her daughter by awarding sole physical custody to the better day-in-and-day-out caretaker, while giving both parents decision-making power over the child. Courts typically use this approach when one parent has religious beliefs that prohibit certain medical care, but is otherwise the more qualified custodian” (Wilson, 2001, pg. 302).
· Wilson does not argue in favor of fathers over mothers for being the custodial parent in which child sexual abuse would occur, since her empirical data presents that in both cases, there is a 50 percent chance for a young girl who is sexually vulnerable to be sexually abused. However, the opposing viewpoints suggest that custodial mothers who date several men pose a higher risk of sexual abuse of their daughters, while other opposing viewpoints suggest that daughters are more vulnerable of being sexually abused by their own fathers, or male friends that may frequent the home if the father is the custodial parent. Wilson’s research suggests that custody determination frequently does not factor in any of the research that has been conducted previously on the sexual vulnerability of young girls and women, but makes its determination solely on the conduct and behavior of each parent leading to a child custody determination. She also suggests that child custody is often litigated for years until a court is able to adequately protect a child, oftentimes after the abuse has already occurred.
· Children are not often protected by child custody proceedings.
· “Daughters living in their father's custody are equally at risk. A national survey of sexual abuse risk factors found ‘markedly higher risk’ for girls following their parents' divorce, ‘particularly when living alone with [their] father.’ In that study, 50 percent of female children residing only with their father reported sexual abuse by someone, although not necessarily their father. Similarly, studies of households in which a mother is absent due to hospitalization, death, or mental illness, also report significantly elevated rates of sexual abuse. These studies of fractured families differ in their estimates of the percentage of girls molested during childhood. However, regardless of whether the precise number is 50 percent or even half of that, the rate is staggering and suggests that girls are at much greater risk after divorce than previously imagined” (Wilson, 2001, pg. 256).
How Far Did the Legal and Social Systems Progress in Assisting Battered Mothers and their Children from the mid 1980s to 2000 —Measuring Progress
· The social work profession has determined that the operational aspect in which domestic violence is handled has changed from 1985 to 2000. Conclusions prove that there has been inadequate theory on the origins of the patriarchal and sexist problems. “Researchers have argued that social workers have done a poor job at addressing domestic violence” (Pyles & Postmus, 2004, pg. 376).
· “On the basis of the analyses of 105 abstracts of articles in social work and sociology journals, we conclude that the social work profession has not significantly changed since Davis’ (1987) study and continues to lack a feminist agenda for social change…” (Pyles & Postmus, 2004, pg. 385).
· Research shows that for any change to occur on the legal level, change must occur within our society. Pyles and Postmus (2004) support that social change must occur first before domestic violence is viewed as a justice (criminal) issue (385). This article also demands for a greater connection between social workers and any persons who are acting in the best interest of children and battered women, and how that greater connection should subsequently influence changes in the legal, socio-economic and medical professionals.
· Researchers believe that there must be a multi-disciplinarian approach to addressing the issues of abuse. Traditionally, the Department of Social Services, a group of social workers, was tasked with the problem. Researchers believe the problem is much bigger now which involves immediate hands-on training programs for legal and community systems to protect battered mothers, women and children. If other community groups and disciplinarians were involved, other than the social work profession, the treatment of such cases may begin to actually protect children and women, rather than put them in harm’s way. Battered mothers and children often turn to the medical profession to create a piece of evidence in the clear and convincing argument that their aggressor is abusing exhibiting abusive behavior (Pyles & Postmus, 2004).
· In increasing numbers, physicians are beginning to see evidence of domestic abuse of both women and children. Physicians in emergency rooms, pediatricians, and even physicians trained in pain management, where survivors of domestic violence cannot verbalize what has happened to them, but the physical evidence (x-rays and other medical data) indicates otherwise. Wilson denies the validity of medical records to be sufficient enough to prove not only domestic violence, but sexual and domestic violence against children as well. Medical practitioners are not only trained to listen to the patient’s story, but to corroborate it with physical evidence. If a patient tells his/her story and it is corroborated by physical evidence, there is merit to the evidence, but not even merit in a court of law, since the legal profession argues that a piece of medical evidence could be a patient’s testimony that may or may not be truthful. If a child hides the story, yet a physician sees the signs of abuse, due to bone deformation or other sign of physical or sexual abuse, a physician may come forward to make a formal declaration of abuse in the medical record and then, in a court of law. However, if a physician is not 100 percent certain that the physical indications could be a sign of abuse, oftentimes, these cases cannot proceed any further, and the child remains unprotected, and in the hands of his/abuser. Physicians gaining evidence of child sexual abuse is nearly impossible, unless physical violence was used in the sexual assault. Because sexual assault often uses covert strategies of manipulation, physical violence is seldom used, particularly with young children, because a young child is incapable of defending him/herself or saying, “Stop” or “no” to the point that the abuse would be considered rape. Many physicians in our American society are not trained in recognizing the patterns and symptoms of physical and sexual abuse, particularly in women and children. This leads to the research of Wright, R.J., Wright, R.O. & Isaac, N.E. (1997) regarding how battered mothers are treated in pediatric emergency departments.
Responses from the Medical Community Regarding Battered Mothers – Mothers Unprotected Even When Child Abuse is Identified in Pediatric Emergency Rooms
· When battered women enter the emergency room, a trained physician ought to be investigating the children. Wife abuse is intrinsically tied to child abuse (Wright, Wright and Isaac, 1997). Further, children who witness the abuse of their mothers are at risk for developing post traumatic stress disorder and experiencing developmental delays. There are some questions as to how well the pediatric emergency room staff is trained in handling such suspected cases, especially when there is a factor of non-disclosure by the battered mother. “The most frequently noted attitudinal obstacle was ‘lack of time in the emergency room to respond to the battered mother’” (Wright, R.J., Wright, R.O. & Isaac, N.E., 1997, pg. 191). This article examines the obstacles and attitudes of staff that prohibit an appropriate and effective response. The research concluded that physicians were trained more in child abuse than wife abuse. Many physicians who claimed to handle child abuse cases, claimed to not handle any wife abuse cases. Further, while physicians received training on recognizing child abuse, little to no physicians received training on recognizing wife abuse. A large majority of physicians believe that child abuse is unrelated to wife abuse. The article states that more training needs to be implemented within medical groups, including emergency departments that indicate that child abuse and wife abuse are interrelated. If non-disclosure is the only means in which medical evidence proves abuse, therefore, non-disclosure must be the only means of proving wife abuse, particularly since testimonies and disclosures of abuse from both mothers and children may or may not be believed.
· Wright, Wright and Isaac (1997) recognize that child abuse and wife abuse are linked, and recognize that children who witness the battering of their mothers, including physical, emotional and verbal battering,“reaches beyond suffering direct physical abuse or neglect. Witnessing the battering of their mothers may be as traumatic to children as being a direct victim of abuse, and both result in similar psychosocial and developmental sequelae. Indeed, the witnessing of one’s mother being battered has been called the most insidious form of child abuse” (Wright, Wright &- Isaac, 1997, pg. 186-187).
· Wright et al. (1997) concluded that battered mothers are rarely recognized in pediatric emergency rooms even though physicians report that they have handled numerous child abuse and neglect cases. Therefore, more education and research needs to be disseminated in the medical and behavioral health communities to raise awareness of the concurrence of abuse and the witnessing of abuse in children in their mothers.
The research does not adequately address the amount of training that must occur in the medical profession that must link child abuse and wife abuse. Physicians, and only seldom physicians, will adequately treat a child for child abuse. However, a small percentage of those physicians even recognize the link between child abuse and wife abuse. Additionally, physicians must also factor in the tendency for a mother to protect the abuser, rather than the child, as is what is expected in a patriarchal construct, and socially imbedded in societal acceptable behavior. Therefore, the need is great for an integrated support system between medical, social, socio-economic, and legal communities to understand the underlying socio-behavioral expectations of mothers in a deeply-rooted patriarchal society, and to construct an implementation program of solution-based systems to morally support women and children who have been abused by the actual patriarch figure within a familial unit, and the patriarchal society, including the medical, legal, social and socio-economic systems that support the abusive patriarchal figure. The need is great for the support systems to change its focus from protecting the patriarchal figure to protecting the children and the mother.
Conclusion
· Employees and professionals of the legal, economic, social and global systems of society have contributed to the failure of said systems to protect battered mothers and their children after experiencing domestic and sexual violence by a domestic partner and father. Because of society’s lack of education and lack of inclination to protect battered mothers and their children, oftentimes, communities’ children are either left unprotected or custody is granted to the abuser, thereby enabling and protecting the abuser congruently.
· Attorneys have recognized that allegers of abuse must prove beyond a reasonable doubt that the abuse occurred, and the clear and convincing evidence consists of more than the survivor’s testimony and medical records of the alleged abuse, also a requirement that makes proving the abuse nearly impossible, and further protects and enables the abuse. Therefore, proving abuse in the court system as it exists today is almost impossible, a reality that also protects the abuser. Yet, children and adults alike are taught from when they are very young that they must contact the authorities if they are being abused, threatened or hurt in anyway.
· However, communities are not adequately prepared to receive these phone calls or handle their stories in courts of law, and survivors’ attempts to protect themselves by reaching out to community organizations often leaves survivors more vulnerable and placed in harms’ way. Several authors and researchers have recognized this failure and have called for a more coordinated community response effort in protecting battered mothers and their children.
· Additionally, the root of the problem has been identified as the deep-rooted patriarchal social constructs that were reified by the familial unit, viewing the patriarch as the entity to support, however, there is a great need for legal, socioeconomic, social and medical communities to shift their support from the patriarchal systems to the maternal and pedagogical systems in order to protect the most vulnerable populations of society.
References
· Daigle, L.E. (1998). Empowering women to protect: improving intervention with victims of domestic violence in cases of child abuse and neglect; a study of Travis County, Texas. Texas Journal of Women and the Law, 7 (2), 287-317.
· McMahon, C. (1999). Due process: constitutional rights and the stigma of sexual abuse allegations in child custody proceedings. Catholic Law, Vol. 39, 153.
· Pyles, L. (2006). Toward safety for low-income battered women: promoting economic justice strategies. Families in Society, 87 (1), 63-70.
· Pyles, L. & Postmus, J. (2004). Addressing the problem of domestic violence: how far have we come? Affila, Vol. 19, No. 4, 376-388. doi: 10.1177/0886109904268865
· Wilson, R.F. (2001). Children at risk: the sexual exploitation of female children after divorce. Cornell Law Review, Vol. 86, 251.
· Wright, R.J., Wright, R.O. & Isaac, N.E. (1997). Response to battered mothers in the pediatric emergency department: a call for an interdisciplinary approach to family violence. Pediatrics, Vol. 99, No. 2, 186-192.
· Because of society’s lack of education and inclination to protect battered mothers and their children, oftentimes, communities’ children are either left unprotected or custody is granted to the abuser. Attorneys have recognized that allegers of abuse must prove beyond a reasonable doubt that the abuse occurred, and the clear and convincing evidence consists of more than the survivor’s testimony and medical records of the alleged abuse. Therefore, proving abuse in the court system as it exists today is almost impossible. Yet, children and adults alike are taught from when they are very young that they must contact the authorities if they are being abused, threatened or hurt in anyway. However, communities are not adequately prepared to receive these phone calls or handle their stories in courts of law, and survivors’ attempts to protect themselves by reaching out to community organizations often leaves survivors more vulnerable and placed in harms’ way. Several authors and researchers have recognized this failure and have called for a more coordinated community response effort in protecting battered mothers and their children.
· Children of battered mothers are “fifteen times more likely to be abused than children of women who are not domestic violence victims” (Daigle, 1998, pg. 288). Although various legal issues arise in the lives of battered women including protective orders, child custody litigation, domestic violence criminal charges, trespassing criminal charges, and child abuse allegations, the different proceedings, including coordinated care from psychological and medical services, are not coordinated in a systematic manner, and battered women and their children remain unprotected (Daigle, 1998).
· “No single social or legal service provider is responsible for this shortfall in services or for instituting change. The absence of intensive domestic violence services for battered women and their children in the CPS system is perhaps symptomatic of the long-term conflict between the movement to protect abused children and the movement to end violence against battered women” (Daigle, 1998, pg. 304).
· Domestic abusers are often capable of blaming the survivors of the abuse, either by blaming the wife as the first aggressor, or blaming the child as too young to adequately know if they were being abused. The ability of a domestic abuser to circumnavigate the legal system indicates that the legal system is not adequately prepared to handle the domestic and sexual abuser, who often manipulates the social and legal systems.
· The current legal system is also not concurrently and appropriately addressing the dynamics of domestic violence on the needs of the mother and the child, and the legal system often takes legal custody of the child away from the battered mother, “even if they have not committed a direct act of abuse or neglect, on the grounds that they have failed to protect their children from the same violence that they themselves could not successfully escape” (Daigle, 1998, pg. 290).
· Mothers who testify to the legal and social systems that they and their children are being abused by a father and spouse, face challenges and obstacles to receiving protection because the system’s first reaction is to punish both mother and child. Mothers that do act face losing physical custody of their children. Oftentimes, if a mother comes forward to report the abuse, and she is charged in a court of law for failing to protect her child, she could oftentimes lose parental rights to her children. Daigle reports that Texas courts support termination of a mother’s 14th amendment right to her child when she fails to protect her children, particularly in cases where fathers have abused mother and children (Daigle, 1998).
· “A failure to protect children is one of several allegations that domestic violence victims face… Any countervailing best interest arguments in favor of preserving a nonviolent battered mother’s parental rights have been invalidated by negating the second prong in the failure to protect context… [Courts often] terminate the parental rights of a mother who repeatedly witnesses the father abuse the daughter, even though she reports that he would beat her if she attempted to protect the child” (Daigle, 1998, pg. 296-297).
· Another challenge that mothers who have been battered with children face is denial from judges, attorneys and courtrooms that the abuse ever occurred. In order to justify the denial of the domestic violence, the mother is labeled as “delusional, unstable, with psychological disorders, or crazy” which furthers the rationality in the law’s eyes that the mother should not have custody of the children.
· “In order to support battered women’s efforts to protect themselves and their children, the CPS system should work to increase awareness of domestic violence issues among parties to CPS litigation and develop a coordinated community response to family violence through the provision of more direct services for battered mothers” (Daigle, 1998, pg. 313).
· However, opposing viewpoints from attorneys largely agree that a higher standard of proof must exist in order for a battered mother or a sexually abused child to win over their aggressor, and these attorneys also agree that if the higher standard of proof is upheld, the battered mother and child will not be harmed.
Constitutional Rights and the Sexual Abuse Stigma that Affects Child Custody Proceedings
· “States are facing a frightening surge in reported cases of child abuse. Specifically, there has been a dramatic increase in cases involving parents accused of sexually abusing their children” (McMahon, 1999, pg. 153). Although many researchers assert that a higher standard of proof of convicting accused parents of child sexual abuse will not affect the well-being of the child in any way, the research shows that children and battered mothers are not being protected by courts of law. McMahon examines a Supreme Court case, Santosky v. Kramer, to support her research (McMahon, 1999).
· McMahon examines Santosky vs. Kramer, a Supreme Court case that concluded that a higher standard of proof and evidence of allegations of child sexual abuse by one of their parents will not compromise the welfare of the child in any way (McMahon, 1999).
· “In protecting the child’s best interests, however, the accused parent’s due process rights are severely jeopardized. Accusations of sexual abuse, in the context of bitter matrimonial actions, require an accused parent to defend potentially unfounded allegations in family court with likely loss of custodial rights” (McMahon, 1999, pg. 155).
· This research suggests that the child’s well-being is not at stake, but the well-being of the accused is, therefore, the community must focus on the accused employment ability, economic status, liberty and social status in the community, rather than the safety of the child, and the continued unification of mother and child. McMahon’s research fails to acknowledge that it is usually the maternal figure that empowers the child to speak out against the sexual abuse they are experiencing.
· McMahon argues that while a parent is being accused of child sexual abuse by a child, there must be a clear and convincing amount of evidence to prove that the sexual child abuse does exist (not just testimony from the child), and because the accusation may result in loss of employment, economic status, liberty and social status, the parent being accused of child sexual abuse, the accused, is granted more protection in the due process of law, rather than the child. “The majority of states require that proof of child abuse and neglect be proven by a preponderance of evidence” (McMahon, 1999, pgs. 157-158). Oftentimes, the child is actually placed with the accused in the due process protection of the abuser. McMahon argues that this process does not compromise the welfare of the child (McMahon, 1999).
· “Due to the nature of the accusations, parents and families may be permanently scarred- by loss of employment, social status, and potential loss of physical liberty for the accused as well as by irreparable damage to the family unit- all of which are substantially different than those parents charged with non-sexual abuse or neglect. Accordingly, these parents should be afforded greater due process protection” (McMahon, 1999, pg. 158).
· McMahon’s research is an example of how patriarchal systems are reified in society, regardless is abuse is occurring or not. McMahon’s research is an example of how children and battered mothers become separated, unprotected, and oftentimes, more vulnerable to repeated incidences of abuse. More accountability from the states and Federal government needs to happen to ensure that the child and victim’s due process protection is upheld. However, any response that the state provides to an allegation of sexual abuse is in the U.S. is supported by Federal grants, therefore the Federal government must become more accountable for oversight of Federal funds to state supported programs that handle child sexual abuse claims, including local courts, legal professionals, and CPS.
· The Child Abuse Prevention and Treatment Act is “a mandate that each state report and respond to evidence of child abuse to receive certain grants” (McMahon, 1999, pg. 163). The Federal government does not regulate how a response is made, and if a response protects a child, mother or abuser. The Federal guidelines to ensure state funds to local governments merely mandate that a response is made, and protecting a child or not protecting a child is not stipulated or audited. “Some courts, however, have reasoned that raising the burden of proof might jeopardize the child’s safety and result in increased fiscal and administrative burdens” (McMahon, 1999, pg. 177). McMahon’s research suggests that protecting the child’s best interests often eclipses the parent’s right to protection. This opposing viewpoint fails to protect the child from sexual abuse, and fails to empower the mother of the child to support the child’s efforts in using his/her voice against the violence and abuse. McMahon’s research can be refuted by the research of Pyles who turns to react with socioeconomic strategies that empower the battered mother and child, rather than preserving the family unit, when domestic violence and sexual assault are present.
Promoting Economic Justice for Battered Mothers and Their Children
· The United States is a sexist society; therefore violence against women is prevalent in patriarchal cultures, particularly in the U.S. The interventions that have been put in place to help women who have survived violence have predominantly failed. There is a relationship between domestic violence and poverty, how community groups cannot adequately address the magnificence of the problem of domestic violence against women and the poverty that these women endure, and seeks to suggest more community development programs within the Department of Social Services, in hand with TANF, to help survivors of domestic violence to get back on their feet (Pyles, 2006). When survivors of domestic violence come forward with their stories, they are forced into a life of poverty, negating any concern for the survivor’s economic status, but concerning itself only with the accused, placing the survivor at greater risk.
· The system fails to intervene to address both poverty and violence, including the affects that the trauma and violence may have on a battered mother’s ability to find employment, successfully maintain employment, and have access to opportunities for higher education, vocational training, employment with insurance benefits that would address the medical and behavioral health needs of the battered mother and her children, economic stability, and access to more nontraditional forms of employment that would allow the battered mother to have a more protective role in her children’s lives. Access to adequate housing, as compounded by an underemployment factor, is also a challenge for battered women and their children after emerging from a traumatic event by a family member (Pyles, 2006). The mental health issues, after a battered mother and child experience or witness trauma, may be another cause for the battered woman to experience challenges in becoming economically self-sufficient. A more integrated approach to services provided to battered mothers and their children’s needs to be developed within the legal, medical, behavioral health, mental health and social service communities to more effective assist the battered mother to become healthier and more self-efficient for herself and her children.
· Legal, medical, behavioral health and service programs that provided training to employees of organizations that attempt to assist battered mothers and their children by specially trained domestic violence advocates or liaisons are shown to increase positive outcomes for their clients (Pyles, 2006). “Strength-based, compassionate advocacy that provides social support” as well as workplace support has been found to be beneficial to the battered mother and children experiencing economical hardships (Pyles, 2006, pg. 63).
· While Pyles addresses a factor of domestic violence that is pervasive in most cases, poverty, this research fails to offer solutions that empower the woman or mother. It also fails to address the battered mother, as opposed to the battered woman. It also makes suggestions to develop more community based groups in conjunction with TANF, a Department of Social Services program, yet asserts that the community group programs that have been put in place have failed. Community groups are failing to protect this vulnerable population of society, and attaching any solution to the Department of Social Services, which has failed numerously to adequately to protect battered women, and her children.
· Whereas, Pyles fails to address the needs of children after witnessing the abuse of their mother, or being survivors of abuse themselves, Wilson, R.F. (2001) addresses how children become more at risk if a mother or battered woman chooses to pursue safety.
Why Children of Divorce are at Higher Risk for Sexual Exploitation and Assault
· Wilson examines whether court rooms and judges in family courts can effectively ascertain the dynamics of child sexual abuse in considering child custody (Wilson, 2001). The article asserts that when fathers are awarded custody despite risks of child sexual abuse, the argument withstands criticisms based on the research that regardless of parental custodian determination, every child is at an increased risk for being a victim of child sexual abuse. Wilson asserts that we must recognize as a society that our families are no longer like Ozzie and Harriett, and unless we recognize that there are mitigated risks involved with broken and nontraditional families, we will never begin to address the issues of child sexual abuse.
· Wilson questions whether or not court rooms can adequately assess the risks of child sexual abuse in making child custody determinations in family courts across the U.S. Wilson’s evidence suggests that there is an overwhelming empirical connection (seventy social science studies) between the sexual child abuse of girls and family divorce/disruption. Wilson argues that family courts cannot adequately address the risk of child sexual abuse in making child custody determinations because the legal profession refuses to address the research of increased probability of sexual abuse after the separation/divorce. Wilson suggests three child sexual abuse prevention strategies for parents to take control of lessening the risk of their daughters becoming child sexual abuse survivors. Wilson argues that if judicial figures understand more clearly how divorcing families function, as opposed to the traditional American nuclear family, judicial figures can more intelligently address child custody determinations in order to lessen the risk of young girls and women being sexually abused. “Because divorce magnifies a girl's sexual vulnerability, the law has the opportunity to address this risk proactively in child custody determinations, rather than reacting to abuse, as it now does” (Wilson, 2001, pg. 255).
· “Given the powerful tug that parents feel to act in the interests of their child, awarding sole custody misses a critical opportunity to empower the noncustodial parent to shield his or her child from the threat of molestation. To capitalize on this inclination, a court need only award joint custody, now an option in more than half the jurisdictions in the United States. Alternatively, courts could preserve the noncustodial parent's authority to consent to preventive education for his or her daughter by awarding sole physical custody to the better day-in-and-day-out caretaker, while giving both parents decision-making power over the child. Courts typically use this approach when one parent has religious beliefs that prohibit certain medical care, but is otherwise the more qualified custodian” (Wilson, 2001, pg. 302).
· Wilson does not argue in favor of fathers over mothers for being the custodial parent in which child sexual abuse would occur, since her empirical data presents that in both cases, there is a 50 percent chance for a young girl who is sexually vulnerable to be sexually abused. However, the opposing viewpoints suggest that custodial mothers who date several men pose a higher risk of sexual abuse of their daughters, while other opposing viewpoints suggest that daughters are more vulnerable of being sexually abused by their own fathers, or male friends that may frequent the home if the father is the custodial parent. Wilson’s research suggests that custody determination frequently does not factor in any of the research that has been conducted previously on the sexual vulnerability of young girls and women, but makes its determination solely on the conduct and behavior of each parent leading to a child custody determination. She also suggests that child custody is often litigated for years until a court is able to adequately protect a child, oftentimes after the abuse has already occurred.
· Children are not often protected by child custody proceedings.
· “Daughters living in their father's custody are equally at risk. A national survey of sexual abuse risk factors found ‘markedly higher risk’ for girls following their parents' divorce, ‘particularly when living alone with [their] father.’ In that study, 50 percent of female children residing only with their father reported sexual abuse by someone, although not necessarily their father. Similarly, studies of households in which a mother is absent due to hospitalization, death, or mental illness, also report significantly elevated rates of sexual abuse. These studies of fractured families differ in their estimates of the percentage of girls molested during childhood. However, regardless of whether the precise number is 50 percent or even half of that, the rate is staggering and suggests that girls are at much greater risk after divorce than previously imagined” (Wilson, 2001, pg. 256).
How Far Did the Legal and Social Systems Progress in Assisting Battered Mothers and their Children from the mid 1980s to 2000 —Measuring Progress
· The social work profession has determined that the operational aspect in which domestic violence is handled has changed from 1985 to 2000. Conclusions prove that there has been inadequate theory on the origins of the patriarchal and sexist problems. “Researchers have argued that social workers have done a poor job at addressing domestic violence” (Pyles & Postmus, 2004, pg. 376).
· “On the basis of the analyses of 105 abstracts of articles in social work and sociology journals, we conclude that the social work profession has not significantly changed since Davis’ (1987) study and continues to lack a feminist agenda for social change…” (Pyles & Postmus, 2004, pg. 385).
· Research shows that for any change to occur on the legal level, change must occur within our society. Pyles and Postmus (2004) support that social change must occur first before domestic violence is viewed as a justice (criminal) issue (385). This article also demands for a greater connection between social workers and any persons who are acting in the best interest of children and battered women, and how that greater connection should subsequently influence changes in the legal, socio-economic and medical professionals.
· Researchers believe that there must be a multi-disciplinarian approach to addressing the issues of abuse. Traditionally, the Department of Social Services, a group of social workers, was tasked with the problem. Researchers believe the problem is much bigger now which involves immediate hands-on training programs for legal and community systems to protect battered mothers, women and children. If other community groups and disciplinarians were involved, other than the social work profession, the treatment of such cases may begin to actually protect children and women, rather than put them in harm’s way. Battered mothers and children often turn to the medical profession to create a piece of evidence in the clear and convincing argument that their aggressor is abusing exhibiting abusive behavior (Pyles & Postmus, 2004).
· In increasing numbers, physicians are beginning to see evidence of domestic abuse of both women and children. Physicians in emergency rooms, pediatricians, and even physicians trained in pain management, where survivors of domestic violence cannot verbalize what has happened to them, but the physical evidence (x-rays and other medical data) indicates otherwise. Wilson denies the validity of medical records to be sufficient enough to prove not only domestic violence, but sexual and domestic violence against children as well. Medical practitioners are not only trained to listen to the patient’s story, but to corroborate it with physical evidence. If a patient tells his/her story and it is corroborated by physical evidence, there is merit to the evidence, but not even merit in a court of law, since the legal profession argues that a piece of medical evidence could be a patient’s testimony that may or may not be truthful. If a child hides the story, yet a physician sees the signs of abuse, due to bone deformation or other sign of physical or sexual abuse, a physician may come forward to make a formal declaration of abuse in the medical record and then, in a court of law. However, if a physician is not 100 percent certain that the physical indications could be a sign of abuse, oftentimes, these cases cannot proceed any further, and the child remains unprotected, and in the hands of his/abuser. Physicians gaining evidence of child sexual abuse is nearly impossible, unless physical violence was used in the sexual assault. Because sexual assault often uses covert strategies of manipulation, physical violence is seldom used, particularly with young children, because a young child is incapable of defending him/herself or saying, “Stop” or “no” to the point that the abuse would be considered rape. Many physicians in our American society are not trained in recognizing the patterns and symptoms of physical and sexual abuse, particularly in women and children. This leads to the research of Wright, R.J., Wright, R.O. & Isaac, N.E. (1997) regarding how battered mothers are treated in pediatric emergency departments.
Responses from the Medical Community Regarding Battered Mothers – Mothers Unprotected Even When Child Abuse is Identified in Pediatric Emergency Rooms
· When battered women enter the emergency room, a trained physician ought to be investigating the children. Wife abuse is intrinsically tied to child abuse (Wright, Wright and Isaac, 1997). Further, children who witness the abuse of their mothers are at risk for developing post traumatic stress disorder and experiencing developmental delays. There are some questions as to how well the pediatric emergency room staff is trained in handling such suspected cases, especially when there is a factor of non-disclosure by the battered mother. “The most frequently noted attitudinal obstacle was ‘lack of time in the emergency room to respond to the battered mother’” (Wright, R.J., Wright, R.O. & Isaac, N.E., 1997, pg. 191). This article examines the obstacles and attitudes of staff that prohibit an appropriate and effective response. The research concluded that physicians were trained more in child abuse than wife abuse. Many physicians who claimed to handle child abuse cases, claimed to not handle any wife abuse cases. Further, while physicians received training on recognizing child abuse, little to no physicians received training on recognizing wife abuse. A large majority of physicians believe that child abuse is unrelated to wife abuse. The article states that more training needs to be implemented within medical groups, including emergency departments that indicate that child abuse and wife abuse are interrelated. If non-disclosure is the only means in which medical evidence proves abuse, therefore, non-disclosure must be the only means of proving wife abuse, particularly since testimonies and disclosures of abuse from both mothers and children may or may not be believed.
· Wright, Wright and Isaac (1997) recognize that child abuse and wife abuse are linked, and recognize that children who witness the battering of their mothers, including physical, emotional and verbal battering,“reaches beyond suffering direct physical abuse or neglect. Witnessing the battering of their mothers may be as traumatic to children as being a direct victim of abuse, and both result in similar psychosocial and developmental sequelae. Indeed, the witnessing of one’s mother being battered has been called the most insidious form of child abuse” (Wright, Wright &- Isaac, 1997, pg. 186-187).
· Wright et al. (1997) concluded that battered mothers are rarely recognized in pediatric emergency rooms even though physicians report that they have handled numerous child abuse and neglect cases. Therefore, more education and research needs to be disseminated in the medical and behavioral health communities to raise awareness of the concurrence of abuse and the witnessing of abuse in children in their mothers.
The research does not adequately address the amount of training that must occur in the medical profession that must link child abuse and wife abuse. Physicians, and only seldom physicians, will adequately treat a child for child abuse. However, a small percentage of those physicians even recognize the link between child abuse and wife abuse. Additionally, physicians must also factor in the tendency for a mother to protect the abuser, rather than the child, as is what is expected in a patriarchal construct, and socially imbedded in societal acceptable behavior. Therefore, the need is great for an integrated support system between medical, social, socio-economic, and legal communities to understand the underlying socio-behavioral expectations of mothers in a deeply-rooted patriarchal society, and to construct an implementation program of solution-based systems to morally support women and children who have been abused by the actual patriarch figure within a familial unit, and the patriarchal society, including the medical, legal, social and socio-economic systems that support the abusive patriarchal figure. The need is great for the support systems to change its focus from protecting the patriarchal figure to protecting the children and the mother.
Conclusion
· Employees and professionals of the legal, economic, social and global systems of society have contributed to the failure of said systems to protect battered mothers and their children after experiencing domestic and sexual violence by a domestic partner and father. Because of society’s lack of education and lack of inclination to protect battered mothers and their children, oftentimes, communities’ children are either left unprotected or custody is granted to the abuser, thereby enabling and protecting the abuser congruently.
· Attorneys have recognized that allegers of abuse must prove beyond a reasonable doubt that the abuse occurred, and the clear and convincing evidence consists of more than the survivor’s testimony and medical records of the alleged abuse, also a requirement that makes proving the abuse nearly impossible, and further protects and enables the abuse. Therefore, proving abuse in the court system as it exists today is almost impossible, a reality that also protects the abuser. Yet, children and adults alike are taught from when they are very young that they must contact the authorities if they are being abused, threatened or hurt in anyway.
· However, communities are not adequately prepared to receive these phone calls or handle their stories in courts of law, and survivors’ attempts to protect themselves by reaching out to community organizations often leaves survivors more vulnerable and placed in harms’ way. Several authors and researchers have recognized this failure and have called for a more coordinated community response effort in protecting battered mothers and their children.
· Additionally, the root of the problem has been identified as the deep-rooted patriarchal social constructs that were reified by the familial unit, viewing the patriarch as the entity to support, however, there is a great need for legal, socioeconomic, social and medical communities to shift their support from the patriarchal systems to the maternal and pedagogical systems in order to protect the most vulnerable populations of society.
References
· Daigle, L.E. (1998). Empowering women to protect: improving intervention with victims of domestic violence in cases of child abuse and neglect; a study of Travis County, Texas. Texas Journal of Women and the Law, 7 (2), 287-317.
· McMahon, C. (1999). Due process: constitutional rights and the stigma of sexual abuse allegations in child custody proceedings. Catholic Law, Vol. 39, 153.
· Pyles, L. (2006). Toward safety for low-income battered women: promoting economic justice strategies. Families in Society, 87 (1), 63-70.
· Pyles, L. & Postmus, J. (2004). Addressing the problem of domestic violence: how far have we come? Affila, Vol. 19, No. 4, 376-388. doi: 10.1177/0886109904268865
· Wilson, R.F. (2001). Children at risk: the sexual exploitation of female children after divorce. Cornell Law Review, Vol. 86, 251.
· Wright, R.J., Wright, R.O. & Isaac, N.E. (1997). Response to battered mothers in the pediatric emergency department: a call for an interdisciplinary approach to family violence. Pediatrics, Vol. 99, No. 2, 186-192.