Dismantling the Myth of the Child Witness: Strengthening Your Legal Strategy in Domestic Abuse Cases

by David Mandel, CEO, Safe & Together Institute

As a family lawyer representing adult survivors of domestic abuse in divorce and custody proceedings, it's crucial to understand that the concept of "child witness to domestic violence" is a myth that severely limits our ability to advocate effectively for our clients and their children. In my book "Stop Blaming Mothers and Ignoring Fathers: How to Transform the Way We Keep Children Safe From Domestic Violence," I challenge this oversimplified view and offer a more comprehensive, child-centered approach that can strengthen your legal arguments and better serve your clients' interests[1]. By adopting this approach, you can more effectively counter opposing counsel's arguments, educate judges, and secure outcomes that truly protect your clients and their children.

The Myth of the Child Witness: A Critical Examination

The "child witness" paradigm has long dominated legal understanding of how domestic abuse affects children. While it has been groundbreaking in raising awareness, it falls critically short of capturing the full reality of children's experiences? of domestic abuse perpetrators’ behaviours. As an advocate, understanding these limitations is key to building stronger cases for your clients.

Why the Child Witness Paradigm is Flawed:

1. Narrow Focus on Physical Violence: The child witness concept primarily centers on children seeing or hearing physical violence. However, as I emphasize in Chapter 4, "coercive control frameworks recognize how rights and freedoms are being removed from the survivor: freedom of association, freedom of speech, freedom of safety, and freedom over her own body."[2] These non-physical forms of abuse can be equally, if not more, damaging to children's development and well-being. When presenting your case, it's crucial to highlight these less visible but equally harmful aspects of abuse.

2. Ignores Direct Victimization: In my book, I highlight that "domestic violence perpetrators regularly sexually harass, humiliate, and assault their partners."[3] This abuse often extends to children. The child witness paradigm fails to account for the direct abuse and neglect that children may experience from the perpetrator. Be prepared to present evidence of how the perpetrator's behavior directly impacts the children, not just the adult survivor. Research by Edleson (1999) found that in 30-60% of cases where either domestic violence or child maltreatment was identified, the other form of violence was also present[4].

3. Overlooks Coercive Control: As I explain, "Many survivors will openly express that it's the emotional and psychological abuse that is worse for them than the physical violence."[5] The same is true for children. The constant atmosphere of fear, control, and unpredictability can have profound effects on children's emotional and psychological development. When arguing for custody or visitation arrangements, emphasize how the perpetrator's coercive control affects the children's daily lives and long-term well-being. A study by Katz et al. (2020) found that children exposed to coercive control experienced similar negative outcomes as those who witnessed physical violence[6].

4. Fails to Capture Full Impact: The child witness concept doesn't adequately address how perpetrators' behaviors affect every aspect of children's lives. As I note, "It is essential to see how the perpetrator's behaviors create concrete changes in the home environment, undermine the other parent's functioning, change the day-to-day life of the child, and change the overall functioning of the family."[7] In your legal arguments, paint a comprehensive picture of how the abuse impacts all aspects of family life.

5. Limits Understanding of Harm: By focusing primarily on 'witnessing,' we miss crucial aspects of how children are harmed. In the book, I explain that "Children are not just witnesses. They are also targets and tools, part of the perpetrators' multidirectional web of abuse and control."[8] When presenting evidence, highlight instances where children have been used as tools of abuse or directly targeted by the perpetrator.

6. Ignores Children's Active Roles: The child witness paradigm often portrays children as passive observers. However, as I point out, "Children physically intervene with the domestic violence perpetrator to protect their mothers and their siblings. They call law enforcement to stop the violence. They seek help and advice from social workers, teachers, and friends."[9] When discussing the impact on children, include their active responses to the abuse, as this can provide powerful evidence of the harm they're experiencing.

7. Disregards Intersectionality: The child witness concept often fails to consider how other forms of systemic oppression intersect with domestic abuse. As I note in the book, "A true picture of a child's experience of domestic violence would include consideration of intersectional violence."[10] Be prepared to address how your client's and their children's experiences may be compounded by factors such as race, class, or immigration status.

8. Obscures the Betrayal of Parental Role: Perhaps most critically, the myth of the child witness fails to highlight how domestic abuse represents a fundamental betrayal of the parental role, usually by the father. As I emphasize in my book, "The nonstranger relationship offers insider access to a child's inner emotional life and to the child's day-to-day routines, relationships, and activities."[11] By focusing solely on 'witnessing,' we miss the profound breach of trust and responsibility inherent in a parent's choice to engage in abusive behaviors. This betrayal of the parental role can be a powerful argument in custody proceedings.

Gender Double Standards and Accountability

As a family lawyer, you must be prepared to challenge the gender double standards that often permeate legal responses to domestic abuse. As I discuss in my book, our society tends to have "low expectations for men as parents" while holding mothers to impossibly high standards[12]. This bias is often reflected in custody decisions and allegations of parental alienation.

By adopting a more comprehensive understanding of how perpetrators harm children, you can help dismantle these double standards and hold abusive fathers more accountable. As I argue in the book, "Domestic violence perpetration is a parenting choice."[13] When we fully grasp the multiple pathways through which perpetrators harm their children - not just through witnessed violence but through undermining the other parent, disrupting family functioning, and directly abusing or neglecting the children - we raise the bar for what we expect from fathers.

This shift allows you to:

1. Hold perpetrators accountable for the full spectrum of harm they cause, not just physical violence.

2. Recognize and validate the protective efforts of your clients, who are often blamed for "failing to protect" their children.

3. Make stronger arguments for custody and visitation arrangements that truly serve the best interests of the children.

Redefining Children's Best Interests

In your role as a family lawyer, it's crucial to help the court understand that children's best interests in cases involving domestic abuse extend far beyond physical safety. They encompass emotional well-being, stable relationships, and an environment free from coercive control. To truly serve these interests, you must broaden the court's perspective.

Pivoting to the Perpetrator's Pattern

Rather than focusing solely on incidents a child may have seen or heard, encourage the court to examine the full pattern of the perpetrator's coercive control and actions taken to harm the children. This pattern-based approach reveals a more accurate picture of the harm caused to child and family functioning, allowing for decisions that genuinely serve children's best interests.

Multiple Pathways to Harm?

When presenting your case, emphasize that children are impacted by domestic abuse in many ways beyond witnessing incidents:

- Children seeing or hearing the abuse toward the adult survivor?

- Direct abuse or neglect by the perpetrator

- Undermining of the adult survivor's parenting??

- Disruption of basic needs like housing, education, and healthcare

- Damage to important relationships and support systems

Research supports this broader understanding. Humphreys et al. (2018) found that domestic violence perpetrators' behaviors had wide-ranging negative impacts on children, including disrupted attachment, educational difficulties, and increased risk of mental health problems[14]. Use this research to bolster your arguments for limited or supervised visitation, or even termination of parental rights in severe cases.

Raising the Bar for Perpetrators as Parents

With this deeper understanding of how perpetrators harm children, argue for higher expectations for abusive parents. It's not enough to simply stop physical violence. Push for court orders that require the perpetrator to:

- Take responsibility for their entire pattern of abusive behaviors, not just isolated incidents

- Acknowledge how their actions have harmed their children's sense of safety, stability, and well-being

- Make meaningful changes that address all aspects of their coercive control

- Actively support their children's healing process

This comprehensive accountability is crucial for children's safety, healthy development, and best interests. It shifts the focus from simply managing risk to actively promoting children's recovery and long-term well-being. A study by Scott et al. (2019) found that interventions addressing the entire spectrum of abusive behaviors, not just physical violence, were more effective in reducing harm to children[15]. Use this research to support your arguments for comprehensive intervention programs as part of any custody or visitation agreement. In some cases, you may be able to use this approach to argue for sole legal custody by the adult survivor to minimize the perpetrator’s ability to disrupt decision making related to children’s needs. In other cases, you may be able to use it to argue for no custody or contact, when appropriate.

Implications for Your Legal Strategy

Understanding the limitations of the child witness paradigm and adopting a more comprehensive approach is crucial for effective advocacy. Here's how you can apply this knowledge in your practice:

1. Comprehensive Case Building:

???When preparing your case, look beyond incidents of physical violence. Document the full pattern of coercive control and its impact on the children. This might include but is not limited to:?

???- How the perpetrator's behaviors have disrupted the children's education, healthcare, or relationships

???- Instances of the perpetrator undermining your client's parenting

???- Economic abuse that has affected the children's standard of living

???- Emotional manipulation of the children

???As I note in my book, "The Safe & Together Model's perpetrator pattern-based approach offers a clear alternative approach to the 'myth of the domestic violence incident.'"[16] Use this approach to build a stronger case that fully represents your client's experience.

2. Reframing Protective Behaviors:

???Help the court understand that your client's actions, which may seem puzzling or even negligent under the child witness paradigm, are actually protective efforts. For example, if your client didn't leave the relationship immediately, explain how staying might have been a strategic choice to protect the children from escalated violence or economic instability.

3. Challenging Perpetrator Accountability:

???Push for higher standards of accountability for the abusive parent. As I argue, "It would be better to be talking about perpetrators' 'failure to change' instead of survivors' failure to protect."[17] Advocate for parenting plans or custody arrangements that require the perpetrator to acknowledge harm, make meaningful changes, and actively support the children's healing.

4. Addressing Parental Alienation Claims:

???Be prepared to counter claims of parental alienation. Explain how what might look like 'alienation' is often a child's reasonable response to the perpetrator's pattern of abuse. Use your understanding of multiple pathways to harm to illustrate why a child might be resistant to contact with an abusive parent. This is covered more fully in the book’s chapter on “The Myth of Parental Alienation.”?

5. Expert Testimony:

???Consider bringing in expert testimony that can educate the court on the limitations of the child witness paradigm and the full impact of domestic abuse on children. This can be particularly powerful in jurisdictions where judges may not be well-versed in the dynamics of domestic abuse.

6. Safety Planning:

???Develop comprehensive safety plans that address the full spectrum of the perpetrator's abusive behaviors, not just physical violence. This might include provisions for supervised technology use if the perpetrator has a history of using technology for surveillance or manipulation.

7. Post-Separation Abuse:

???Be vigilant about post-separation abuse. As I explain in my book, "Separation and the end of relationships offer zero guarantees that the violence and coercive control will stop or that the children will be better off."[18] Advocate for provisions in custody and visitation orders that address potential ongoing coercive control.

8. Intersectionality:

???Consider how your client's and their children's experiences of abuse might intersect with other forms of oppression or vulnerability. This understanding can inform requests for specific provisions in custody orders or additional support services.

Transforming Legal Practice for Better Outcomes

We at the Safe & Together Institute invite you to transform your approach to domestic abuse cases involving children. By applying this more comprehensive framework, you can make more persuasive arguments that truly protect and support families impacted by domestic abuse, ensuring that children's best interests are genuinely at the forefront of legal proceedings.

Remember, children's best interests are served when we fully understand the impact of domestic abuse and hold perpetrators accountable for the entire spectrum of harm they cause. This approach not only protects children but also paves the way for their long-term well-being and healthy development. By moving beyond the myth of the child witness in your legal practice, you can create a more just and effective response to domestic abuse that truly serves children and families.

By integrating this more comprehensive understanding of domestic abuse into your advocacy, you can more effectively represent your client's interests and promote outcomes that truly serve the best interests of the children. As I emphasize in my book, "Real change requires a new paradigm and new ways to operationalize more equal expectations of men and women as parents."[19] As a family law advocate, you have a crucial role to play in promoting this paradigm shift within the legal system.

[1] Mandel, D. (2024). Stop Blaming Mothers and Ignoring Fathers. [Publisher details].

[2] Ibid., Chapter 4.

[3] Ibid., [Page number].

[4] Edleson, J.L. (1999). The overlap between child maltreatment and woman battering. Violence Against Women, 5(2), 134-154.

[5] Mandel, D. (2024). Stop Blaming Mothers and Ignoring Fathers. [Page number].

[6] Katz, E., Nikupeteri, A., & Laitinen, M. (2020). When coercive control continues to harm children: Post-separation fathering, stalking and domestic violence. Child Abuse Review, 29(4), 310-324.

[7] Mandel, D. (2024). Stop Blaming Mothers and Ignoring Fathers. [Page number].

[8] Ibid., [Page number].

[9] Ibid., [Page number].

[10] Ibid., [Page number].

[11] Ibid., [Page number].

[12] Ibid., [Page number].

[13] Ibid., [Page number].

[14] Humphreys, C., Thiara, R.K., Sharp, C., & Jones, J. (2018). More present than absent: Men who use domestic violence and their fathering. Child & Family Social Work, 23(3), 440-449.

[15] Scott, K.L., Lishak, V., & Wolfe, D.A. (2019). Reducing risk for children exposed to violence: Making change in men who abuse. Journal of Interpersonal Violence, 34(12), 2605-2630.

[16] Mandel, D. (2024). Stop Blaming Mothers and Ignoring Fathers. [Page number].

[17] Ibid., [Page number].

[18] Ibid., [Page number].

[19] Ibid., [Page number].