A Response to "What Triggers Violence in Custody Battles in the United States?"

A colleague in California, Attorney Mark B. Baer, recently wrote a post discussing some horrific and recent tragedies of domestic violence that have occurred during the process of divorce or child custody court cases.

Attorney Baer points out that our courts are not designed to deal with all of the emotions that come with a divorce, or a child custody dispute, and neither are most attorneys. Attorney Baer then posits a direct connection between these cases of violence in divorce or child custody disputes, and concludes that the family law system in the United States is to blame for that violence.

We respectfully but strongly disagree. The frustrating delays and other inefficiencies of the court system are not the cause of domestic violence. Abusers, making their own choices, are the cause of domestic violence.

The following response was written jointly by Jonathan Eaton, Esq. and Justin Kelsey, Esq. as a reaction to Attorney Baer's article:

Attorney Baer's post describes two problems: (1) frustration borne from an extended court process and (2) domestic violence. He then assumes that one can lead to the other, and that therefore the alternatives to one (alternative dispute resolution instead of the traditional court process) would be an effective way to prevent or solve the other problem (domestic violence, particularly extreme cases of domestic violence). Attorney Baer's rationale is faulty because frustration with the court process is not the root cause of domestic violence.

Domestic violence is on the extreme end of the spectrum of controlling behavior. It occurs when one partner in a relationship desires to control the other, which may escalate to acts of emotional or physical violence. Although frustration with the court process could trigger a specific act of violence, simply avoiding court does not remove the underlying problem.

Furthermore, in cases where the controlling behavior has been an issue prior to the start of the divorce process, alternative dispute resolution could be used to continue a pattern of intimidation and abuse.

Mediation and collaborative divorce are voluntary, consensual processes. They require open and honest participation and if either individual is dissatisfied with the process, he or she may end it at any time. If an emotionally controlling individual is feeling that he or she is not getting his or her way in mediation or in the collaborative law process (in other words, feels as if he or she is not in control), then that process is likely to fail. If control is more important than resolution to a spouse, then they will revert back to their controlling behavior, regardless of the process being used.

Child custody battles can be the most emotionally charged family law disputes. Attorney Baer illustrates three examples of child custody disputes ending when one parent allegedly murdered the other (and sometimes the children and bystanders). It is impossible to know for sure whether any of these tragedies would have been avoided had the respective couples engaged in alternative dispute resolution, but it is unlikely that a person who is willing to resort to murder when they don't get their way was going to be satisfied with compromise. It is far more likely that an abuser would take advantage of alternative dispute resolution to get their way. Allowing abusers to control a situation so as to avoid outbreaks of violence is not a solution, it is tantamount to condoning their behavior and perpetuates the pattern of control.

Attorney Bear is correct that for many cases alternative dispute resolution can greatly increase the likelihood of a peaceful resolution, and successful co-parenting plans. However, in cases where there is a history or risk of domestic violence, the delays and frustrations of the court system are far outweighed by the protections that the court can provide to abuse victims (such as orders from protection from abuse).

Like Attorney Bear we encourage potential divorce litigants to consider the alternative ways to get divorced, but at the same time we feel it is very important to recognize that his article significantly misrepresents the causes of domestic violence:

The court does not create abusers, and there is no excuse for domestic violence.

At Kelsey & Trask, P.C., we pride ourselves in our mediation and our collaborative law practice, and we hope that it becomes more widespread as more individuals become aware of the alternatives to the traditional litigation track. In general, we feel that it is the most effective forum for accomplishing what is in the best interests of the children. However, we recognize that it is not "one size fits all."

In Massachusetts, our probate and family courts have become so backlogged with cases that clerks and registers have cut their hours working with the public in order to allocate more of their hours to performing the administrative work necessary to move the existing cases along. The traditional litigation process is too long, and often very frustrating for people already transitioning through a difficult period. If you and your spouse are willing to participate openly and honestly in mediation or collaborative divorce, then we encourage you to learn more about these processes.

But if you are a victim of domestic violence, your first priority should be the safety of you and your children. You should explore all of your options, including the protections offered by the court. If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE, or if you live in Massachusetts check out these resources available on the Massachusetts State website, and seek help.