Study: DV Claims Thwart Family Court Reform
Robert Franklin, Esq.
August 19th, 2011
An Oregon law, designed to promote shared custody, accomplished the opposite.
That’s one of the many findings of a recently published analysis of custody outcomes in Oregon following the passage of custody legislation in 1997. The study by economist Douglas Allen and family law professor Margaret Brinig appeared in the June issue of the Journal of Empirical Legal Studies. Unfortunately I can’t provide a link.
Anyone interested in advancing the cause of fathers’ rights and family court reform should read the Allen and Brinig analysis. It shows clearly that sensible family court reform will never come without sensible reform of domestic violence laws.
In 1997, the State of Oregon passed legislation designed to reduce acrimony in child custody litigation and to increase shared parenting post-divorce.
Before 1997, Oregon’s divorce law regarding custody was fairly typical. It provided for joint legal custody (shared decision making) in the vast majority of cases and physical custody awards “in the best interests of the child.” Although joint physical placement was a possibility, it was not favored. The legislation amending the statute, 1997 Oregon Laws Ch.
707 (S.B. 243), shows the change in emphasis.
The court may hold a hearing to decide the custody issue prior to any other issues. When appropriate, the court shall recognize the value of close contact with both parents and encourage joint parental custody and joint responsibility for the welfare of the children.
The amendments went on to encourage mediation of custody disputes. But the preference for both mediation and joint custody was negated in the law by allegations of domestic abuse.
Allen and Brinig gained access to all divorce and custody records in the state beginning three years before the change in the law and five years afterward. They randomly selected 500 cases for each year totalling 4,000 that were winnowed down to a little over 3,800. The authors’ goal was to learn the effects of the new law on parental behavior in custody matters. The results, for many of the variables studied, are not what the authors – or the state legislature – expected.
Here’s how the authors describe their findings generally:
This article has empirically examined a change in custody rules, and has shown that this legislation did influence behavior on several margins, mostly in ways one might expect. In particular, the movement toward joint custody had real effects on custody awards, the use of mediators, and divorce proceedings. Paradoxically, many changes were not those sought by the legislation’s proponents, who sought more equal parenting in the context of less acrimonious and less costly divorces and mediated solutions. Rather, the legislation created incentives that led to more dragged out and acrimonious divorces and no more equal parenting.
The reason for the perverse outcomes of the law can be stated in four words – claims of domestic abuse. Because domestic abuse was included in the law as the card that trumped all its other requirements, claims of abuse were used to thwart its overarching goals of more equal parenting, shorter divorce proceedings and less acrimony in the process.
The authors identify some changes that are attributable to the new law. For example, before 1997, sole maternal custody was granted in an average of 66% of cases. After the law changed, that dropped to an average of 59% of cases. That drop in sole maternal custody was mirrored by an increase in sole paternal custody, but the number of cases was much smaller. Sole paternal custody increased from 8% of cases before, to 10% after the statutory change.
Meanwhile, shared custody remained statistically unchanged. Split custody (in which each parent gets sole custody of one or more children) increased from 2% to 3%.
The authors explain:
Whereas split custody decisions were declining over time, they start to increase after the legal change. Ironically, and perhaps most surprising, the effect on joint parenting shown in Regression (3) shows there was effectively no change that can be attributed to the law. Thus, the joint parenting law altered custody, but this came through changes in sole and split custody. This result is quite surprising.
So the law that was aimed at greater shared parenting missed the target. In fact, it simply replaced a bit of sole maternal custody with a bit of sole paternal custody and tossed in some split custody for good measure.
Likewise, the length of time it took to finalize a custody case increased.
And all of that can be laid at the feet of the universal “out clause,” i.e. claims of domestic violence.
The authors note that the law’s goal of greater joint custody was in fact a threat to mothers who received the overwhelming share of parenting time prior to the change in the law. They had the most to lose and therefore were overwhelmingly the ones to file claims of abuse (91% before, 82% after 1997), although fathers filed abuse claims as well in an attempt to get sole custody.
Overall, claims of abuse rose significantly and false claims doubled from 3% of all cases to 6%. (The authors defined a false claim as one that was made, but for which no order was made.) The increase in claims resulted in a “dramatically increasing” number of protective orders after the change in the law.
The bottom line is more divorce cases contained more accusations of domestic violence abuse, and these cases were revisited more often, after the introduction of joint parenting.
One of the hypotheses tested by Allen and Brinig asked whether, faced with the new law, mothers would simply trade decreased child or spousal support for maintaining their pre-1997 level of custody. That proved not to be so. There was little or no change in levels of child and spousal support suggesting that mothers preferred to use the abuse exception to maintain both the money and the kids.
Here is the author’s summary of the new law’s effects:
1. A fall in sole custody to mothers, a rise in sole custody to fathers, and surprisingly, little change in joint custody.
2. A strong and significant change in the percentage of mediated divorces.
3. No significant change in the raw number of spousal support motions or in the dollar awards of spousal or child support.
4. A decrease in the speed of divorce. That is, divorces happened later after separation.
5. An increase in the number of abuse actions filed, particularly by wives. These abuse actions led to an increase in court no-contact orders, though not by as much as the increase in claims. The accusations were made by both the husband and wife, and were more likely to be repeat allegations.
Taken together, the results paint the following picture. The change in joint parenting law transferred custody rights to fathers who were able to use them to increase sole and split custody. There is no evidence that mothers bought these rights back through reduced support. In addition, the “abuse” escape clause, although utilized by both parents, was mostly wielded by wives. Thus, at least over the first five years of the law, the formal transfer of legal rights led to more disputes in settling the divorce, leading to longer divorces. Our evidence suggests this increase in the length of trial comes from increased accusations of abuse and battles over custody of children.
In short, laws intended to increase joint parenting will fail if they include the all-purpose domestic abuse “escape valve,” and they all do. That points toward a direction that family court reformers must follow – the reform of domestic violence laws and the use of DV claims in custody litigation.
Domestic violence allegations will likely always play a part in child custody disputes, so the goal must be to make them function in a non-biased and sensible way. Non-biased means that allegations by men and women must be treated with equal respect. Among other things, Allen and Brinig’s study strongly suggests that they weren’t by Oregon courts during the eight years studied.
Second, DV allegations must be subjected to some reasonable level of judicial scrutiny. That is, reliable evidence must be required for a finding of actual physical violence. As long as mere allegations of placing a parent “in fear” can be used to deprive a child of its father, family court reform is a dead letter.
We’ve known the pernicious effects of domestic violence allegations for many years. This study shows plainly that the battle for family court reform will be fought on the field of domestic violence.