* Articles Editor, Boston College Third World Law Journal (2003–2004). I would like to thank my editors for their insightful comments and suggestions during the writing of this Note, the Third World Law Journal staff for all of their support, and especially Ian Hastings, for his continual support and encouragement—not just during this project, but over a lifetime.
1 Carrie Cuthbert et al., Battered Mothers Speak Out: A Human Rights Report on Domestic Violence and Child Custody in the Massachusetts Family Courts 19 (2002) (quoting a woman whose custody dispute, litigated in Massachusetts, involved the appointment of a guardian ad litem) (alteration in original).
2 Id. at 46.
3 Id.
4 Id.
5 Id. For further discussion of how exposure to battering affects children, see infra Part II.D.
6 Cuthbert et al., supra note 1, at 46.
7 Id. This scenario is not uncommon as children, especially young children, are often in the arms of their parents and thus become caught in the middle of battering incidents. Leigh Goodmark, From Property to Personhood: What the Legal System Should Do for Children in Family Violence Cases, 102 W. Va. L. Rev. 237, 244 (1999); Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 Hastings L.J. 1, 82 (2001); see also discussion infra Part II.D.
8 Cuthbert et al., supra note 1, at 46.
9 Id.
10 Id.
11 Id.
12 Id.
13 Cuthbert et al., supra note 1, at 46.
14 See id.
15 See Clare Dalton & Elizabeth M. Schneider, Battered Women and the Law 449 (2001).
16 See id.
17 Id.; Elizabeth M. Schneider, Battered Women and Feminist Lawmaking 3, 20 (2000) (stating that virtually no public discussion of domestic violence occurred until the mid-1970s); Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 5 (1991) (noting that feminist activism of the early 1970s brought battering to public attention). For example, newspapers, which both reflect and shape public attitudes, still fail to report non-homicide domestic violence, making it difficult for people to understand and address the problem. John McManus & Lori Dorfman, Berkeley Media Studies Group, Distracted by Drama: How California Newspapers Portray Intimate Partner Violence 3, 18 (Lori Dorfman ed., 2003). For a historical perspective of domestic violence and the battered women’s movement, see Schneider, supra, at 13–20, 20–28.
18 Lundy Bancroft & Jay G. Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 1 (2002); see Clare Dalton, When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System, 37 Fam. & Conciliation Cts. Rev. 273, 285 (1999); Weithorn, supra note 7, at 7. The first published article to explore the exposure of children to domestic violence appeared in 1975, but the scholarship in this area did not flourish until the 1990s. See Dalton, supra, at 285. There were fifty-six articles published by 1998, and by 1999, four books had been published. Id. The increased focus on the harm of exposing children to domestic violence may be a part of a larger concern for the psychological and emotional abuse of children. See Weithorn, supra note 7, at 7 n.11; see also Presidential Task Force on Violence and the Family, Am. Psychological Ass’n, Violence and the Family 4 (1996) [hereinafter Am. Psychological Ass’n] (defining psychological maltreatment of children to include exposure to violence between parents).
19 See Dana E. Prescott, The Guardian Ad Litem in Custody and Conflict Cases: Investigator, Champion, and Referee?, 22 U. Ark. Little Rock L. Rev. 529, 530 (2000).
20 See Marcia M. Boumil, Ethical Issues in Guardian Ad Litem Practice, 86 Mass. L. Rev. 8, 8 (2001); Tara Lea Muhlhauser, From “Best” to “Better”: The Interests of Children and the Role of a Guardian Ad Litem, 66 N.D. L. Rev. 633, 643 (1990); Prescott, supra note 19, at 530. One Massachusetts attorney notes that courts are currently appointing GALs in record numbers in that state due to increases in contested custody and visitation cases. Boumil, supra, at 8. The appointment of GALs in custody and visitation cases appears to have increased during the late 1990s; in the early part of the decade, commentators noted that these appointments were rare. See, e.g., Howard A. Davidson, The Child’s Right to Be Heard and Represented in Judicial Proceedings, 18 Pepp. L. Rev. 255, 270 (1991); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time Is Now, 26 Fam. L.Q. 53, 55 (1992).
21 See Am. Psychological Ass’n, supra note 18, at 100 (reporting that custody disputes occur more frequently in families with a history of domestic violence); Cuthbert et al., supra note 1, at 2 (suggesting that a majority of highly disputed custody cases involve a history of domestic violence); Dalton, supra note 18, at 287 (reporting that at least 50% of contested custody cases involve physical violence); Martha Albertson Fineman, Domestic Violence, Custody, and Visitation, 36 Fam. L.Q. 211, 214 (2002) (noting that domestic violence is present in most custody and visitation cases). Domestic violence is disproportionally represented in custody disputes primarily because batterers are more likely than nonbatterers to contest custody. See Bancroft & Silverman, supra note 18, at 113; see also discussion infra Part II.C. One judge, commenting on the high involvement of domestic violence in custody disputes, worried that “the very frequency of domestic violence in disputes about child custody may have the effect of inuring courts to it and thus minimizing its significance.” Custody of Vaughn, 664 N.E.2d 434, 439–40 (Mass. 1996).
22 Dalton & Schneider, supra note 15, at 450; Richard Ducote, Guardians Ad Litem in Private Custody Litigation: The Case for Abolition, 3 Loy. J. Pub. Int. L. 106, 135 (2002). A common tactic of batterers is to deny and minimize their abusive behavior while finding blame with their partner. Bancroft & Silverman, supra note 18, at 17–19. This is particularly likely to result in the kind of conflicting testimony that will prompt a judge to appoint a GAL. Dalton & Schneider, supra note 15, at 450; see Shelia M. Murphy, Guardians Ad Litem: The Guardian Angels of Our Children in Domestic Violence Court, 30 Loy. U. Chi. L.J. 281, 287–91 (1999).
23 See supra notes 20–22 and accompanying text.
24 Dalton & Schneider, supra note 15, at 450.
25 Mass. Chapter of the Nat’l Ass’n of Soc. Workers Comm. on Domestic Violence & Sexual Assault, Report of “the GAL Resource and Training Project” 14 (Nov. 4, 1998) (unpublished report) [hereinafter GAL Report]. For further discussion of the potential benefits of GALs in cases involving domestic violence, see infra Part III.
26 See Murphy, supra note 22, at 287.
27 See Bancroft & Silverman, supra note 18, at 200; Murphy, supra note 22, at 287.
28 See Raven C. Lidman & Betsy R. Hollingsworth, The Guardian Ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition, 6 Geo. Mason L. Rev. 255, 291 (1998); Roy T. Stuckey, Guardians Ad Litem as Surrogate Parents: Implications for Role Definition and Confidentiality, 64 Fordham L. Rev. 1785, 1794 (1996). “Ad litem” literally means “for the suit.” Black’s Law Dictionary 43 (7th ed. 1999). A “guardian ad litem” is appointed by the court to appear on behalf of an incompetent or minor party for the purposes of an ongoing lawsuit only. Id. at 713.
29 See George B. Curtis, The Checkered Career of Parens Patriae: The State as Parent or Tyrant?, 25 DePaul L. Rev. 895, 897–98 (1976); Lidman & Hollingsworth, supra note 28, at 291.
30 See Curtis, supra note 29, at 897–98; Rebecca H. Heartz, Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness, 27 Fam. L.Q. 327, 330–31 (1993).
31 William Halikias, The Guardian Ad Litem for Children in Divorce: Conceptualizing Duties, Roles, and Consultative Services, 32 Fam. & Conciliation Cts. Rev. 490, 490, 493 (1994).
32 Although much of what is discussed here will also apply to the use of GALs in other contexts, this Note focuses specifically on the use of GALs in private custody litigation. Private custody disputes involve litigation between private parties. Ducote, supra note 22, at 109; Weithorn, supra note 7, at 14 n.38. Private child custody disputes can arise from a number of proceedings, including paternity suits, third-party custody actions, and complaints for modification. See generally 1 Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases �� 3, 7, 10 (2d ed. 1993). North Dakota also provides for the discretionary appointment of GALs in abuse prevention protective order cases. Muhlhauser, supra note 20, at 645–46 (citing N.D. Cent. Code � 14–07.1–05.1 (1981 & Supp. 1989)). The majority of private custody disputes, however, arise within divorce actions, 2 Thomas A. Jacobs, Children & the Law: Rights & Obligations � 6:06, at 14 (1995), despite the fact that in 90% of divorce actions the parties will come to an agreement, Comm. on Prof’l Practice & Standards, Am. Psychological Ass’n, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychologist 677, 677 (1994) [hereinafter APA Guidelines].
In public custody disputes, as opposed to private custody cases, the role of the state is adversarial to the parties. Weithorn, supra note 7, at 14 n.38. Generally, a public custody dispute stems from a child abuse and neglect investigation where the state believes it is in the best interest of the child to terminate parental rights. See id.
33 See discussion infra Part I.C.
34 Stuckey, supra note 28, at 1794. One of the earliest appearances of a guardian for a child in English law was in a case from the fourteenth century. Lidman & Hollingsworth, supra note 28, at 291. A guardian was appointed to protect the interests of a child in the land of his deceased father. Id. In that case, the guardian’s purpose was only to protect the child’s economic interests (and thus the king’s interests) in the land, not to protect the child himself. Id.
35 See Ann M. Haralambie, The Child’s Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 6 (1993) (the conception of the GAL is an extension of the state in its parens patriae role); Halikias, supra note 31, at 493 (under parens patriae the state assumes guardianship over legally incompetent individuals); Lidman & Hollingsworth, supra note 28, at 291 (guardian concept has become linked with concept of parens patriae); Stuckey, supra note 28, at 1794 (government’s claim of authority to appoint GALs is based on the doctrine of parens patriae). The term parens patriae, literally meaning “parent of his or her country,” is generally used to refer to the role of the state as provider of protection to those unable to care for themselves. Black’s Law Dictionary, supra note 28, at 1137.
36 3 William Blackstone, Commentaries *48.
37 Lidman & Hollingsworth, supra note 28, at 291.
38 Curtis, supra note 29, at 897–902.
39 1 Legal Rights of Children � 12.01, at 531 (Donald T. Kramer ed., 2d ed. 1994); Lidman & Hollingsworth, supra note 28, at 291.
40 See, e.g., Morman Church v. United States, 136 U.S. 1, 57 (1890) (stating that the parens patriae doctrine is “inherent in the supreme power of every state . . . a most beneficial function, and often necessary to be exercised in the interests of humanity, and for the prevention of injury to those who cannot protect themselves”); In re S.G., 677 N.E.2d 920, 928 (Ill. 1997) (“[T]he doctrine of parens patriae . . . represents an expression of the general power and obligation of the government as a whole to protect minors and the infirm . . .”).
41 See In re S.G., 677 N.E.2d at 928.
42 See Lidman & Hollingsworth, supra note 28, at 291 n.177.
43 See 387 U.S. 1, 41 (1967).
44 Id. (“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.”).
45 See Legal Rights of Children, supra note 39, � 12.01, at 531; Ducote, supra note 22, at 109–10; Goodmark, supra note 7, at 317.
46 See Muhlhauser, supra note 20, at 633–34.
47 Weithorn, supra note 7, at 7; see Muhlhauser, supra note 20, at 633 n.1. The 1962 publication of C. Henry Kempe’s article, The Battered Child Syndrome, brought child abuse to the attention of the nation. Heartz, supra note 30, at 329; Weithorn, supra note 7, at 55–56. The 1980s and 1990s witnessed a similar movement against child sexual abuse. Weithorn, supra note 7, at 7. One author suggests that a new era is now beginning, one that will focus on the concern for children exposed to domestic violence. Id.
48 See Heartz, supra note 30, at 327–28. Judges appointed GALs in abuse and neglect cases before statutory mandates required them to do so. Id. at 328. Courts recognized the need to appoint a representative for the child in protection cases, where the interests of the parent often conflict with the interests of the child. Id. at 330.
49 See Child Abuse and Neglect Prevention and Treatment Act of 1974, Pub. L. No. 93-247, � 4(b)(2)(G), 88 Stat. 4, 7 (codified at 42 U.S.C. � 5106a(b)(2)(A)(ix) (2000)). The Act was reauthorized in 1988. Child Abuse Prevention, Adoption, and Family Services Act of 1988, Pub. L. No. 100-294, 102 Stat. 102.
50 � 4(b)(2)(G); see, e.g., Ala. Code � 26–14–11 (1992); N.D. Cent. Code � 50–25.1–08 (1999). As of 1990, however, twenty-six states were not yet in compliance with the spirit and intent of requirement. Heartz, supra note 30, at 333–34.
51 See � 4(b)(2)(G); Halikias, supra note 31, at 492; Muhlhauser, supra note 20, at 633–34. Wisconsin began using GALs in child custody cases in 1955, followed by New Hampshire. Halikias, supra note 31, at 494. By 1988, nineteen other states created statutory authority for the appointment of GALs in custody cases. Id.
52 Halikias, supra note 31, at 492. In actuality, research on children of divorce has been mixed. Id. The number of variables that may be at play make it difficult to study the relationship between divorce and mental health of children exclusively. Id.
53 See id. at 491; Muhlhauser, supra note 20, at 636. Since fault was no longer a relevant factor in divorce, custody hearings increasingly emphasized parental behavior, with each party attempting to paint the other as an unfit parent. Halikias, supra note 31, at 491. Consequently, many refer to custody cases as the “ugliest litigation.” Id.
54 Halikias, supra note 31, at 493; Robert W. Hansen, Guardians Ad Litem in Divorce and Custody Cases: Protection of the Child’s Interests, 4 J. Fam. L. 181, 183 (1964). It is generally accepted that courts have inherent authority to appoint GALs to protect the interests of minor children. See, e.g., In re Marriage of Vucic, 576 N.E.2d 406, 411 (Ill. App. Ct. 1991) (stating that courts have inherent power to appoint a GAL for a minor involved in litigation); Verrocchio v. Verrocchio, 429 S.E.2d 482, 486 (Va. Ct. App. 1993) (stating court has discretionary power to appoint a GAL for a child in a custody dispute); see also Legal Rights of Children, supra note 39, � 12.01, at 531.
55 See Edwards v. Edwards, 71 N.W.2d 366, 367 (Wis. 1955); Halikias, supra note 31, at 494.
56 Edwards, 71 N.W.2d at 367.
57 See Halikias, supra note 31, at 494; Ralph J. Podell, The “Why” Behind Appointing Guardians Ad Litem for Children in Divorce Proceedings, 57 Marq. L. Rev. 103, 103–05 (1973).
58 See Kritzik v. Kritzik, 124 N.W.2d 581, 585 (Wis. 1963) (“This power vested in the family court, reflects a recognition that children involved in a divorce are always disadvantaged parties and that the law must take affirmative steps to protect their welfare.”).
59 See Weichman v. Weichman, 184 N.W.2d 882, 886 (Wis. 1971) (stating that upon remand, trial court should appoint GAL); Dees v. Dees, 164 N.W.2d 282, 287 (Wis. 1969) (stating that trial court should have appointed GAL); Koslowsky v. Koslowsky, 163 N.W.2d 632, 636 n.3 (Wis. 1969) (recommending and commending use of GALs); Wendland v. Wendland, 138 N.W.2d 185, 191 (Wis. 1965) (recommending that the trial court give serious consideration to the appointment of a GAL).
60 Halikias, supra note 31, at 494; Podell, supra note 57, at 103–05.
61 Halikias, supra note 31, at 494; Podell, supra note 57, at 105.
62 Legal Rights of Children, supra note 39, � 2.25, at 107.
63 Wis. Stat. � 747.045 (1975) (current version at Wis. Stat. � 767.045 (West 2001 & Supp. 2003)); Ducote, supra note 22, at 110. The original statute provided, in pertinent part, that: “In any action for an annulment, divorce, legal separation, or otherwise affecting marriage, when the court has reason for special concern as to the future welfare of the minor children, the court shall appoint a GAL to represent such children.” Wis. Stat. � 747.045 (1975) (emphasis added); Podell, supra note 57, at 105–06.
64 Ala. Code � 26–14–11 (1992) (Alabama); Alaska Stat. � 25.24.310 (Michie 2002) (Alaska); Ariz. Rev. Stat. Ann. � 25–321 (West 2000 & Supp. 2003) (Arizona); Ark. Code Ann. � 9–13–101(d) (Michie 2002) (Arkansas); Cal. Fam. Code �� 3150, 3151 (West 1994 & Supp. 2004) (California); Colo. Rev. Stat. � 14–10–116 (2003) (Colorado); Conn. Gen. Stat. �� 46b–54 (2004) (Connecticut); Del. Code Ann. tit. 13, � 721 (1999) (Delaware); D.C. Code Ann. � 16–918 (2001) (District of Columbia); Fla. Stat. Ann. � 61.401 (West 1997 & Supp. 2004) (Florida); Ga. Code Ann. � 29–4–7 (2003) (Georgia); Haw. Rev. Stat. Ann. � 571–46(8) (Michie 1999 & Supp. 2003) (Hawaii); Idaho Code � 32–704 (Michie 1996) (Idaho); 750 Ill. Comp. Stat. Ann. 5/506 (1999 & Supp. 2003) (Illinois); Ind. Code Ann. �� 31–15–6–1, 31–17–6–1 (Michie 2003) (Indiana); Iowa Code Ann. � 598.12 (West 2001) (Iowa); Kan. Sup. Ct. R., Admin. Order No. 100 (Kansas); Ky. Rev. Stat. Ann. � 403.090 (Michie 1999) (Kentucky); La. Rev. Stat. Ann. � 9:345 (West 2000) (Louisiana); Me. Rev. Stat. Ann. tit. 19-A, � 1507 (West 1998 & Supp. 2003) (Maine); Md. Code Ann., Fam. Law � 1–202 (1999) (Maryland); Mass. Gen. Laws ch. 215, � 56A (2002) (Massachusetts); Mich. Stat. Ann. � 27.3178(598.17d) (Michie Supp. 2000) (Mich. Comp. Laws � 712A.17d (LEXIS current through P.A. 243, Dec. 23, 2003)) (Michigan); Minn. Stat. Ann. � 518.165 (1990 & Supp. 2004) (Minnesota); Miss. Code Ann. � 93-5-13 (1972) (Mississippi); Mo. Ann. Stat. � 452.423 (West 2003) (Missouri); Mont. Code Ann. � 40–4–205 (2003) (Montana); Neb. Rev. Stat. � 42–358 (1993 & Supp. 1996) (Nebraska); Nev. Rev. Stat. 432B.505 (2002) (Nevada); N.H. Rev. Stat. Ann. � 458:17-a (1992 & Supp. 2003) (New Hampshire); N.J. Stat. Ann. � 9:2–4 (West 2002) (New Jersey); N.M. Stat. Ann. � 40–4–8 (Michie 1999) (New Mexico); N.Y. Fam. Ct. Act � 241 (McKinney 2000) (New York); N.C. St. R. Civ. P. 17 (North Carolina); N.D. Cent. Code � 14–09–06.4 (1997) (North Dakota); Ohio Rev. Code Ann. � 3109.04 (West 2000 & Supp 2003) (Ohio); Okla. Stat. Ann. tit. 43, � 107.3 (West 2001 & Supp. 2004) (Oklahoma); Or. Rev. Stat. � 107.425 (2001) (Oregon); Pa. R. Civ. P. 1915.11 (Pennsylvania); R.I. Gen. Laws � 15–5–16.2 (2003) (Rhode Island); S.C. Code Ann. � 20–7–1545 (Law. Co-op. Supp. 2003) (South Carolina); S.D. Codified Laws � 25–4–45.4 (Michie 1999) (South Dakota); Tenn. Code Ann. � 36–4–132 (2001) (Tennessee); Tex. Fam. Code Ann. �� 107.011, 107.014 (Vernon 2002 & Supp. 2004) (Texas); Utah Code Ann. � 30–3–11.2 (1998), � 78–7–45 (2002) (Utah); Vt. Stat. Ann. tit. 15, �� 594, 669 (2002) (Vermont); Va. Code Ann. � 16.1–266 (Michie 2003) (Virginia); Wash. Rev. Code Ann. �� 26.12.175, 26.09.220 (West 1997 & Supp. 2004) (Washington); W. Va. Code Ann. �� 48–9–302 (Michie 2001) (West Virginia); Wis. Stat. � 767.045 (West 2001 & Supp. 2003) (Wisconsin); Wyo. Stat. Ann. � 14–3–211 (Michie 2003) (Wyoming).
65 See Haralambie, supra note 35, at 2; Legal Rights of Children, supra note 39, � 2.25, at 106. Some commentators take the position that courts should not routinely appoint GALs in child custody disputes, but rather should reserve them for those cases for which their services are necessary in light of the facts of the case. See American Academy of Matrimonial Lawyers, Representing Children: Standards for Attorneys and Guardians Ad Litem in Custody or Visitation Proceedings (with Commentary), 13 J. Am. Acad. Matrim. Law. 1, 2 (1995) [hereinafter AAML]; Lidman & Hollingsworth, supra note 28, at 261. These commentators do not mention whether the presence of a history of domestic violence would be reason for the appointment of a GAL, but considering the high number of contested custody cases involving domestic violence, it is unlikely they would take that position. See AAML, supra, at 2; Lidman & Hollingsworth, supra note 28, at 261; sources cited supra note 21.
66 Wis. Stat. � 767.045 (West 2001 & Supp. 2003); Haralambie, supra note 35, at 2 n.6; Halikias, supra note 31, at 494. Until 1992, both Wisconsin and New Hampshire mandated the appointment of a GAL in custody and visitation proceedings. See Haralambie, supra note 35, at 2 n.6; Halikias, supra note 31, at 494. In 1992, New Hampshire amended its statute to make these appointments discretionary. N.H. Rev. Stat. Ann. � 458:17-a (1992 & Supp. 2003).
67 See, e.g., Or. Rev. Stat. � 107.425(6) (2001) (requiring courts to appoint a GAL in a custody or visitation dispute only if one or more of the children request it); Vt. Stat. Ann. tit. 15, � 594(b) (2002) (requiring appointment only if the children will be called as witnesses).
68 See discussion infra Part I.C.
69 See Dalton & Schneider, supra note 15, at 444; Ducote, supra note 22, at 116; Lidman & Hollingsworth, supra note 28, at 256–57. Most lawyers, judges, and GALs would admit that they are not sure how to explain the GAL concept. Lidman & Hollingsworth, supra note 28, at 256.
70 Legal Rights of Children, supra note 39, � 12.05, at 542; Stuckey, supra note 28, at 1785.
71 See Governor’s/Mass. Bar Ass’n’s Commission on the Unmet Legal Needs of Children, Report of the Governor’s/Massachusetts Bar Association’s Commission on the Unmet Legal Needs of Children 25 (1988) [hereinafter Unmet Legal Needs]; Elrod, supra note 20, at 57. The variety of legal proceedings that utilize GALs contributes to the lack of a precise definition. See Unmet Legal Needs, supra, at 25.
Some types of litigation in which GALs are commonly appointed for children include: civil litigation involving property or other financial interests (such as probate cases where the child is a beneficiary, tort litigation, or contract cases); medical and mental treatment cases (such as commitments); child welfare cases (including child abuse, neglect, and dependency actions, termination of parental rights, and adoption); juvenile delinquency; application of a minor for abortion without parental consent; and domestic relations disputes (divorce-related custody and visitation disputes, post-divorce modifications, and paternity actions). Haralambie, supra note 35, at 1 nn.1–2; Legal Rights of Children, supra note 39, � 12.04, at 536–45; Unmet Legal Needs, supra, at 25; Stuckey, supra note 28, at 1785.
The criminal justice system is a newer context for the use of GALs in which courts appoint GALs for children who are victims or witnesses in criminal proceedings. Haralambie, supra note 35, at 3; Muhlhauser, supra note 20, at 643–44. See generally Debra Whitcomb, Guardians Ad Litem in Criminal Courts (1988); Mark Hardin, Guardians Ad Litem for Child Victims in Criminal Proceedings, 25 J. Fam. L. 687 (1987).
72 Unmet Legal Needs, supra note 71, at 25; Lidman & Hollingsworth, supra note 28, at 256–57. For clarity, this Note differentiates an attorney for the child from the traditional role of GAL. An attorney for the child is expected to be a zealous advocate for the expressed preference of the child. Haralambie, supra note 35, at 12. The traditional GAL, however, is not bound by the child’s wishes but rather is permitted to recommend the result that the GAL determines is in the child’s best interests. Id. at 6. This is not to suggest that these roles are always clear in practice, however. Considerable blurring can result when courts appoint a representative to act as both attorney for the child and GAL. See 750 Ill. Comp. Stat. 5/506(a) (Supp. 2003) (permitting appointment of an attorney to serve as a child’s representative in a role that combines the attorney and GAL roles); Haralambie, supra note 35, at 3. In addition, even when representatives purport to have a clear understanding of their role, they may act in ways that are not consistent with their identified role. Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J. 1126, 1146–53 (1978) (reporting the findings of the author’s study in which she interviewed Connecticut lawyers acting as GALs).
73 See Legal Rights of Children, supra note 39, � 2.25, at 106.
74 See Cuyahoga Co. Ct. Dom. Rel. R. 35(B) (WESTLAW 2003 legislation) (rule of Cuyahoga County, Ohio, specifying that a GAL must have a law degree or a graduate degree in psychology, psychiatry, or social work); Custody of a Minor, 489 N.E.2d 1266, 1268 (Mass. App. Ct. 1986) (holding that a GAL must be a “disinterested person”).
75 See, e.g., Ala. Code � 26–14–11 (1992) (specifying that an attorney shall be appointed to serve as GAL); Haw. Rev. Stat. Ann. � 571–46(8) (Michie 1999 & Supp. 2003) (allowing the appointment of attorneys, social workers, or psychologists as GALs); Wis. Stat. � 767.045(3) (West 2001 & Supp. 2003) (mandating that GALs be attorneys admitted to practice in Wisconsin).
76 See, e.g., Fla. Stat. Ann. � 61.402 (1997 & Supp. 2004) (stating that a GAL may be a citizen certified by the Guardian Ad Litem Program); Wash. Rev. Code Ann. � 26.12.175 (West 1997 & Supp. 2004) (allowing GALs to be appointed from a court-appointed special advocate program).
77 See Dalton, supra note 18, at 287. For example, in cases involving domestic violence, the Massachusetts Family and Probate Court has appointed GALs from the Child Witness to Violence Project at Boston Medical Center in Boston, Massachusetts. Id. at 287 n.62. For more information about the Child Witness to Violence Project, see http://www.bmc.org/ pediatrics/special/CWTV/overview.html (last visited Jan. 30, 2004).
78 See Charles T. Cromley, Jr., “[A]s Guardian Ad Litem I’m in a Rather Difficult Position.,” 24 Ohio N.U. L. Rev. 567, 586 (1998) (stating that the definition of “qualified volunteer” suitable for appointment as GAL depends on which aspect of the GAL’s role the court emphasizes).
79 See Dalton & Schneider, supra note 15, at 444.
80 See id.
81 Mass. Senate Comm. on Post Audit and Oversight, Guarding Our Children: A Review of Massachusetts’ Guardian Ad Litem Program Within the Probate and Family Court, S. Rep. 1828, 2000 Sess. (Mass. 2001), at http://www.state.ma.us/legis/senate/guardchild.htm (last visited Feb. 8, 2004). Minnesota, for example, currently requires forty hours of training prior to the acceptance of an appointment and eight hours of training annually to stay active. Id. Maine requires sixteen hours of training for all prospective GALs, and six hours of continuing education each year. Me. R. Guard. Ad Litem R. II (2)(C)(ii), (2)(E) (WESTLAW through 2003 legislation). Massachusetts requires six hours of training per year to remain on the active list, but does not require pre-appointment training. Mass. S. Rep. 1828. Alabama, on the other hand, has no training requirements, either before or after appointment. See Ala. Code � 26–14–11 (1992).
82 See Dalton & Schneider, supra note 15, at 446.
83 See, e.g., Ariz. Rev. Stat. Ann. � 25–321 (West 2000 & Supp. 2003) (providing merely that GAL will represent the interests of the minor); Mo. Ann. Stat. � 452.423 (West 2003) (providing that the GAL shall, inter alia, conduct interviews, examine witnesses, and testify); N.H. Rev. Stat. Ann. � 458:17-a (1992 & Supp. 2003) (discussing appointment, standing, and fees, but not duties).
84 Tara Lea Muhlhauser & Douglas D. Knowlton, The “Best Interest Team”: Exploring the Concept of a Guardian Ad Litem Team, 71 N.D. L. Rev. 1021, 1024 (1995); see also Mass. S. Rep. 1828 (recommending that the Massachusetts Probate and Family Court develop clear guidelines describing the duties of the GAL).
85 Haralambie, supra note 35, at 10–11; Cromley, supra note 78, at 578–84; Lidman & Hollingsworth, supra note 28, at 256–57; Stuckey, supra note 28, at 1786.
86 See Cromley, supra note 78, at 568 (noting that each of the eighty-eight counties in Ohio are left to determine individually the appropriate role of the GAL); Elrod, supra note 20, at 57. Because of the various ways in which courts use GALs, this Note refrains from taking a position on what the appropriate role of a GAL should be. Instead, this Note argues that if the current systems are to remain in place, then regardless of the specific duties, protecting children in child custody disputes requires that standards and guidelines established by each jurisdiction ensure that GALs have adequate knowledge and expertise in issues of domestic violence.
87 Dalton & Schneider, supra note 15, at 446; Ducote, supra note 22, at 111–16.
88 Ducote, supra note 22, at 111–16.
89 Dalton & Schneider, supra note 15, at 446; Ducote, supra note 22, at 111–16.
90 See Am. Psychological Ass’n, supra note 18, at 9, 100.
91 See discussion infra Part II.
92 See Mahoney, supra note 17, at 2.
93 See id.
94 See id.
95 See id.
96 See id.; Weithorn, supra note 7, at 40.
97 See Dalton & Schneider, supra note 15, at 450.
98 The term “domestic violence,” as used in this Note, refers to a batterer’s use of a pattern of coercive control, including physical violence, emotional abuse, threats, sexual assault, financial control, or psychological terrorism against an intimate partner. Bancroft & Silverman, supra note 18, at 3; Sarah M. Buel, Domestic Violence and the Law: An Impassioned Exploration for Family Peace, 33 Fam. L.Q. 719, 719 n.1 (1999). This Note also uses “battering,” and, to a lesser extent, “partner abuse,” interchangeably with “domestic violence.”
The naming of a problem carries significant implications. See Kathryn M. Stanchi, Feminist Legal Writing, 39 San Diego L. Rev. 387, 405 (2002). It can convey a particular perspective, emphasize certain aspects of a problem, and can be either a barrier or a bridge to communication with a listener or a reader. See id. As Elizabeth Schneider describes:
Ever since the women’s movement first articulated the concept of battering, feminists have grappled with the issue of what the “problem” should be called. Each of the possible terms—wife abuse, spouse abuse, domestic violence, intimate violence, wife battering, or women abuse—reflects a different perception of battering. Is the critical determinant marriage, gender, familial relationship, intimacy, or physical violence?
Schneider, supra note 17, at 60.
While the term “domestic violence” has been criticized for being euphemistic and obscuring the true nature of battering, see Ann Jones, Next Time She’ll Be Dead: Battering & How to Stop It 81 (1994), as well as for its communicative emphasis on physical violence over other forms of abuse, the author has chosen to use this term because it is inclusive, widely accepted, and readily familiar to most readers. Similarly, the term “batterer” is used because it also is inclusive and easily understood. While there is a risk that this term can imply that battering behavior is somehow a permanent or inherent trait, that is not the intention here. See Bancroft & Silverman, supra note 18, at xiv.
99 Am. Psychological Ass’n, supra note 18, at 9 (“family violence and abuse are at epidemic proportions”); Goodmark, supra note 7, at 239–40 (“it has almost become trite to declare that violence against women is an epidemic”); Jill Smolowe, What the Doctor Should Do, Time, June 29, 1992, at 57, 57 (stating that the American Medical Association has characterized domestic violence as an “epidemic”).
100 See Violence Against Women Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (providing renewed and additional funding for law enforcement and domestic violence services); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 888–94 (1992) (discussing the prevalence of domestic violence to support striking down a spousal notification requirement for abortions); Proclamation No. 7717, 68 Fed. Reg. 59,079 (Oct. 8, 2003) (statement by President George W. Bush declaring October to be National Domestic Violence Awareness Month); Am. Psychological Ass’n, supra note 18, at 9 (stating that the U.S. Surgeon General declared domestic violence a national epidemic in 1985, as did the U.S. Centers for Disease Control and Prevention). The American Psychological Association and the American Bar Association have both released reports on domestic violence. See Am. Psychological Ass’n, supra note 18; Howard Davidson, Am. Bar Ass’n, The Impact of Domestic Violence on Children: A Report to the President of the American Bar Association XX (1994) [hereinafter Am. Bar Ass’n]. In addition, the Amercian Medical Association issued guidelines recognizing the role of physicians in identifying victims of domestic violence. Smolowe, supra note 99, at 57.
101 See Violence Against Women Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000); Casey, 505 U.S. at 888–94; Proclamation No. 7717, 68 Fed. Reg. at 59,079; Am. Bar Ass’n, supra note 100, at 1; Am. Psychological Ass’n, supra note 18, at 9; Smolowe, supra note 99, at 57.
102 See Am. Psychological Ass’n, supra note 18, at 9; see also Fineman, supra note 21, at 217 (stating that statistics do not reflect the true extent of the problem because a substantial amount of violence is hidden and goes unreported).
103 Am. Bar Ass’n, supra note 100, at 1 (stating that between 1.8 and 4 million women are victimized each year); Am. Psychological Ass’n, supra note 18, at 10 (stating that an estimated 4 million women experience serious assault by an intimate partner annually); Lawrence A. Greenfeld et al., U.S. Dep’t of Justice, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends 1 (1998) (reporting that more than 960,000 incidents of violence against a current or former spouse, boyfriend, or girlfriend occur each year), available at http://www.ojp.usdoj. gov/bjs/abstract/vi.htm (last visited Feb. 8, 2004).
104 Karen Scott Collins et al., Health Concerns Across a Woman’s Lifespan: The Commonwealth Fund 1998 Survey of Women’s Health 8 (1999), available at http://www.cmwf.org/programs/women/ksc_whsurvey99_332.asp (last visited Feb. 8, 2004). This figure is based on telephone interviews with 2,850 women, including samples of African American, Hispanic, and Asian American women. Id. at ix. For the purposes of the survey, domestic violence was defined as having responded “yes” to any of the following items: has spouse or boyfriend ever thrown something at you; pushed, grabbed, shoved, or slapped you; kicked, bit, or hit you with a fist or some other object; beaten you up; choked you; or forced you to have sex against your will. Id. at 8 n.4. Similar findings have been reported previously. See, e.g., Am. Psychological Ass’n, supra note 18, at 10 (stating, in 1996, that nearly one in three adult women experience physical assault by a partner).
105 Proclamation No. 7601, 67 Fed. Reg. 62,169 (Oct. 1, 2002).
106 See Am. Psychological Ass’n, supra note 18, at 24.
107 See id. at 24–25 (stating that domestic violence increases U.S. health care costs); Collins et al., supra note 104, at 8–9 (finding that abused women are at a high risk for psychological problems, have more health problems, and are also twice as likely to smoke); Michael R. Rand, U.S. Dep’t of Justice, Violence Related Injuries Treated in Hospital Emergency Departments 5 (1997) (reporting that 17% of all patients—about 37% of female patients—seeking medical treatment in emergency rooms for violence-related injuries were injured by a current or former intimate partner), available at http://www. ojp.usdoj.gov/bjs/abstract/vrithed.htm (last visited Feb. 8, 2004).
108 See Am. Psychological Ass’n, supra note 18, at 24 (noting that domestic violence increases costs for police and criminal justice systems).
109 See id.; Bancroft & Silverman, supra note 18, at 117 (stating that domestic violence is an important cause of homelessness for women and children); Buel, supra note 98, at 731 (discussing violence as a leading cause of homelessness and poverty for women and children); Graciela Sevilla, Violence Helps Fill Shelters: Survey Finds That Abuse Leads to Homelessness, Wash. Post, Jan. 6, 1994, at M01 (citing a county report in Maryland that found that 42% of homeless shelter residents were there due to domestic violence, duplicating findings of the National Coalition Against Domestic Violence that up to 50% of homeless women and children in the United States are homeless due to domestic violence). Nearly all studies have found that over half of the women receiving welfare report having been physically abused by an intimate partner during their adult lives; between 9% and 23% were abused in the last year. Eleanor Lyon, Welfare and Domestic Violence Against Women: Lessons from Research, Violence Against Women Online Resources, at http://www.vaw.umn. edu/documents/vawnet/welfareanddv/welfareanddv.html (Aug. 2002).
110 Elena Salzman, Note, The Quincy District Court Domestic Violence Prevention Program: A Model Legal Framework for Domestic Violence Intervention, 74 B.U. L. Rev. 329, 333 (1994); see Buel, supra note 98, at 732 (discussing frequency of arrests and applications for restraining orders due to domestic violence). More than two hundred specialized domestic violence courts have appeared throughout the United States to deal with the caseload. Julia Weber, Domestic Violence Courts: Components and Considerations, 2 J. Center for Families, Child. & Cts. 23, 23 (2000).
111 See Mahoney, supra note 17, at 3 (discussing court actors’ perception that domestic violence is rare or exceptional).
112 Dalton & Schneider, supra note 15, at 451; The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 Fam. L.Q. 197, 220 (1995) [hereinafter Family Violence Project].
113 See Bancroft & Silverman, supra note 18, at 113; Cuthbert et al., supra note 1, at 20. The fact that domestic violence is likely to be over-represented in the cases of GALs may, to some extent, be the cause of their inadequate response. Bancroft & Silverman, supra note 18, at 120. Lacking awareness of the statistical probability that domestic violence will be present in a large number of their cases, GALs may react with suspicion to the unexpected frequency of abuse allegations. Id.
114 Cuthbert et al., supra note 1, at 17.
115 See Bancroft & Silverman, supra note 18, at 119; Cuthbert et al., supra note 1, at 21. “Many GALs who are instructed to investigate and make recommendations regarding custody and visitation say that the ‘past abuse’ of one parent by another is irrelevant and that the parents need parenting education to learn how to move on in a way that spares the children.” Cuthbert et al., supra note 1, at 21 (quoting a battered women’s advocate).
116 See Am. Psychological Ass’n, supra note 18, at 39; Dalton, supra note 18, at 288; Joan Zorza, Protecting the Children in Custody: Disputes When One Parent Abuses the Other, 29 Clearinghouse Rev. 1113, 1119 (1996).
117 E.g., Bancroft & Silverman, supra note 18, at 99; Buel, supra note 98, at 727; Fineman, supra note 21, at 213.
118 Goodmark, supra note 7, at 240; Zorza, supra note 116, at 1115.
119 Bancroft & Silverman, supra note 18, at 99.
120 E.g., David Adams, Identifying the Assaultive Husband in Court: You Be the Judge, Boston B.J., July/Aug. 1989, at 23, 23; Buel, supra note 98, at 727; Mahoney, supra note 17, at 65.
121 Mahoney, supra note 17, at 65. This behavior has also been referred to as “separation violence,” Buel, supra note 98, at 727, and “post-separation abuse,” Mahoney, supra note 17, at 64. The use of “separation assault,” as opposed to “post-separation abuse,” has the advantage of including abuse that may occur before the actual separation, resulting from the abuser’s perception of impending separation or the victim’s decision to leave. See Mahoney, supra note 17, at 64–65.
122 Mahoney, supra note 17, at 65–66. Professor Mahoney, who introduced the legal concept of separation assault, defines it as “the attack on the woman’s body and volition in which her partner seeks to prevent her from leaving, retaliate for the separation, or force her to return.” Id. at 65.
123 See Am. Psychological Ass’n, supra note 18, at 67 (stating that professionals must not minimize the danger at and after separation, especially if visitation is involved). Safety can be an issue even at the courthouse itself. See Alexa Capeloto, Justice After Shooting: Man Gets Prison Term for Wounding His Wife, Detroit Free Press, Jan. 29, 2003, 2003 WL 2541671. Laura Smart was shot by her ex-husband outside of the courthouse after a visitation hearing regarding their three-year-old daughter. Id. Laura survived and her ex-husband was sentenced to twelve years in prison. Id. His attorney unsuccessfully argued that Calvin Smart was driven to violence by a court system that does not care about fathers’ rights. Id.
124 Bancroft & Silverman, supra note 18, at 145; see Am. Bar Ass’n, supra note 100, at 15.
125 Jean Guccione, Officials Seek Safe Sites to Swap Custody, L.A. Times, Jan. 13, 2003, at B3.
126 Commonwealth v. Bianchi, 757 N.E.2d 1087, 1089 (Mass. 2001).
127 Id.
128 Dalton, supra note 18, at 288 (citing George Tibbets, Washington Woman Couldn’t Escape Husband, Associated Press, Dec. 21, 1998).
129 See Michelli v. Michelli, 655 So. 2d 1342, 1347–49 (La. Ct. App. 1995) (finding it reasonable to assume that child visitation would be a new forum for abuse of the child or the abused parent, especially as the violence had escalated over time and some of the abuse took place in front of the children); Am. Bar Ass’n, supra note 100, at 14.
130 See Mahoney, supra note 17, at 67–68.
131 See id. at 65.
132 See Adams, supra note 120, at 24; Mahoney, supra note 17, at 64.
133 Bancroft & Silverman, supra note 18, at 74–75; Adams, supra note 120, at 23. Batterers make these threats primarily because they are effective: according to one study, 20% of battered women return to their batterers at least once because of threats to take the children. See Bancroft & Silverman, supra note 18, at 129; Zorza, supra note 116, at 1117. The fear of losing custody is also one of the primary reasons victims delay leaving their abusive partners. Bancroft & Silverman, supra note 18, at 129. Many also cite it as the reason they returned to an abusive relationship. Zorza, supra note 116, at 1117.
134 See Mahoney, supra note 17, at 75.
135 See id. at 43–44. One woman describes the subtext this way:
A custody battle is the quintessential power struggle between men and women. It’s about who controls a woman’s mind and body. It’s also about who gets to control the future. Children are the future. Men think of children as the necessary chains to keep wives from flying away. If we fly away anyway, they transfer their needs to the children.
Id. at 43 (quoting an anonymous mother speaking about custody disputes). Custody litigation has the potential to give batterers, and the courts, power over the victim’s life. Bancroft & Silverman, supra note 18, at 129.
136 See Bancroft & Silverman, supra note 18, at 129.
137 See Am. Psychological Ass’n, supra note 18, at 100; Cuthbert et al., supra note 1, at 2; Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1042 (1991). According to one GAL, “the presence of abuse in and of itself is not enough to rule out joint custody.” Cuthbert et al., supra note 1, at 42.
In recent years, however, legislatures and the courts have begun to recognize and codify the relationship between domestic violence and custody disputes. Nancy K.D. Lemon, Statutes Creating Rebuttable Presumptions Against Custody to Batterers: How Effective Are They?, 28 Wm. Mitchell L. Rev. 601, 613 (2001). This recent movement was initiated by a number of national policy statements supporting the inclusion of domestic violence as a factor in custody decisions. See H.R. Con. Res. 172, 101st Cong. (1990); Model Code on Domestic and Family Violence � 401 (1994); Am. Bar Ass’n, supra note 100, at 15. In 1990, Congress passed a resolution to encourage the states to pass their own statutes establishing a presumption that custody should not be given to batterers. See H.R. Con. Res. 172. In 1994, the American Bar Association also recommended that states create custodial protections for abused parents and children, and stated that it is always appropriate to consider evidence of domestic violence when making custody determinations. Am. Bar Ass’n, supra note 100, at 13, 15. The 1994 Model Code on Domestic and Family Violence also contained a provision for a rebuttable presumption against the granting of custody to an abuser. Model Code on Domestic and Family Violence � 401; see also Am. Psychological Ass’n, supra note 18, at 99 (recommending that in custody disputes preference be given to the nonviolent parent).
By 2001, forty-seven states and the District of Columbia had enacted legislation that either allowed or mandated the courts to take evidence of domestic violence into account when making custody and visitation determinations. Lemon, supra, at 613.
For further discussion about the history of this legislation and analysis of its effectiveness, see Family Violence Project, supra note 112; Lemon, supra; Pauline Quiron, Protecting Children Exposed to Domestic Violence in Contested Custody and Visitation Litigation, 6 B.U. Pub. Int. L.J. 501 (1997); Lynne R. Kurtz, Comment, Protecting New York’s Children: An Argument for the Creation of a Rebuttable Presumption Against Awarding a Spouse Abuser Custody of a Child, 60 Alb. L. Rev. 1345 (1997). But see Deborah Ahrens, Note, Not in Front of the Children: Prohibition on Child Custody as Civil Branding for Criminal Activity, 75 N.Y.U. L. Rev. 737 (2000) (arguing that use of custodial presumption statutes serves to stigmatize the parent for acts more appropriately dealt with in criminal contexts, and does not successfully protect children from harm).
138 E.g., Am. Psychological Ass’n, supra note 18, at 40; Bancroft & Silverman, supra note 18, at 98; Cuthbert et al., supra note 1, at 64; Zorza, supra note 116, at 1117. Studies of custody disputes show that batterers are twice as likely as nonbatterers to seek sole physical custody of their children. Am. Psychological Ass’n, supra note 18, at 40. Batterers are especially likely to fight for custody when they have male children. Bancroft & Silverman, supra note 18, at 113.
139 See Bancroft & Silverman, supra note 18, at 114; Mahoney, supra note 17, at 44.
140 Bancroft & Silverman, supra note 18, at 74–75, 114 (noting that costs can be devastating to abused parent’s financial position); Cuthbert et al., supra note 1, at 66 (reporting that some of the women interviewed stated they were “financially devastated” by custody litigation).
141 Bancroft & Silverman, supra note 18, at 114; see also Zorza, supra note 116, at 1117 (noting that abusers often discover that after separation using the children is the best way to hurt their former partners). Frequently used tactics include filing repeated motions to cause emotional stress and missed work, filing affidavits that include upsetting statements and accusations, and requesting visitation on days that are important to the abused parent. Bancroft & Silverman, supra note 18, at 125.
142 Bancroft & Silverman, supra note 18, at 115; see also Mahoney, supra note 17, at 44. While only a few batterers seek custody primarily to avoid having to pay child support, batterers as a group have been found to be far less likely to pay child support when it is ordered. Bancroft & Silverman, supra note 18, at 113, 115; Buel, supra note 98, at 742; Zorza, supra note 116, at 1117. In fact, they are three times as likely to be in arrears. Am. Psychological Ass’n, supra note 18, at 40. Because the non-payment of support is generally considered to be unrelated to orders pertaining to custody and visitation, batterers suffer few consequences for not meeting their financial obligations. See Bancroft & Silverman, supra note 18, at 113. In addition, victims may not enforce child support orders if they fear retaliation in the form of physical assault or the initiation of custody actions. Id.; see Cuthbert et al., supra note 1, at 61. Refusing to pay child support can be understood within the context of other abusive behaviors as yet another way for batterers to exert control over the victim or to force the victim to return to the relationship due to a lack of financial resources. See Bancroft & Silverman, supra note 18, at 113; Buel, supra note 98, at 743.
143 Bancroft & Silverman, supra note 18, at 115. The victim’s attorney can also play a role in this pervasive problem. See Buel, supra note 98, at 742 (discussing client who was advised by her attorney to refuse to testify in the criminal case in order to get a better financial settlement from the divorce).
144 Bancroft & Silverman, supra note 18, at 115; Mahoney, supra note 17, at 45. According to one study, 59% of fathers who successfully won custody had physically abused their wives and 36% had kidnapped their children. Mahoney, supra note 17, at 45.
145 E.g., Cuthbert et al., supra note 1, at 3; Mass. Gender Bias Study Comm., Mass. Supreme Judicial Court, Report of the Gender Bias Study of the Supreme Judicial Court 59 (1989); Buel, supra note 98, at 735. Other findings have ranged between 9.6% and 63%. Dalton & Schneider, supra note 15, at 350. Since the majority of batterers are men, they may benefit from the favor toward fathers in custody cases. Cuthbert et al., supra note 1, at 3.
146 See Bancroft & Silverman, supra note 18, at 98, 115–22.
147 Id. at 117; Cuthbert et al., supra note 1, at 66. Greater financial resources permit the batterer to retain better legal counsel or withstand a protracted custody battle. Bancroft & Silverman, supra note 18, at 117. Court actors may also be less likely to believe an allegation of abuse when the batterer is a professional or is well-educated, despite the cross-class nature of domestic violence. Cuthbert et al., supra note 1, at 39. Furthermore, a GAL may be more likely to recommend custody to the parent with financial means. Bancroft & Silverman, supra note 18, at 117; Cuthbert et al., supra note 1, at 39. One woman reported that the GAL assigned to her case “said something to the effect of . . . I can’t be that good of a parent, and dad’s a better parent because he works, he has a job, [while] I get [social security income] and [he] just bought a house” Cuthbert et al., supra note 1, at 39.
148 Bancroft & Silverman, supra note 18, at 117–19; see also Am. Psychological Ass’n, supra note 18, at 67 (discussing diagnostic errors by mental health professionals who do not understand domestic violence). Some GALs and custody evaluators believe that psychological testing should be used whenever abuse is alleged. Bancroft & Silverman, supra note 18, at 118. Yet these tests are actually poor predictors of parenting ability: a parent without psychological problems is not necessarily a parent with good parenting skills. See id. In addition, an evaluator unfamiliar with domestic violence issues may misdiagnose abused parents who answer honestly questions such as whether they believe someone may be following them, whether they worry frequently, and whether they believe another individual is responsible for their problems. Id.
149 Bancroft & Silverman, supra note 18, at 116–17; see Adams, supra note 120, at 24–25; Buel, supra note 98, at 741. Children may feel free to act out their anger when the abuser has left the home, but GALs may mistake such behavior as evidence that the abused parent lacks parenting skills. Bancroft & Silverman, supra note 18, at 116. Similarly, the GAL may observe the children behaving better in the batterer’s care, and assume that it is a result of effective parenting, rather than fear. See id. In addition, children may appear to be supportive of the batterer in conversations with the GAL. Id.
150 See Fineman, supra note 21, at 217–18; Mahoney, supra note 17, at 45.
151 Bancroft & Silverman, supra note 18, at 122; Cahn, supra note 137, at 1085; Dalton, supra note 18, at 282. At least one judicial manual encourages judges to be suspicious of allegations of abuse during domestic relations cases. Fineman, supra note 21, at 217. Court personnel, especially judges and GALs, are particularly suspicious if reports of domestic violence are asserted by a woman. See Am. Psychological Ass’n, supra note 18, at 12 (“many people believe that women especially will lodge false charges”) (emphasis added); Cuthbert et al., supra note 1, at 41 (quoting a GAL who states that “[m]any women use allegations of abuse as a tool [in divorce proceedings] when indeed there is no abuse”) (emphasis added) (alteration in original). Yet false reporting of domestic violence occurs infrequently; in fact, the rate of false reports in custody disputes is no greater than for any other crimes. Am. Psychological Ass’n, supra note 18, at 12. Batterers, however, find they can use this suspicion to their advantage by suggesting to the GAL that the allegations never arose until custody was contested. See Bancroft & Silverman, supra note 18, at 127.
152 Adams, supra note 120, at 23; see Cuthbert et al., supra note 1, at 36, 40; Buel, supra note 98, at 740.
153 Dalton, supra note 18, at 276, 277; see Zorza, supra note 116, at 1122.
154 Am. Psychological Ass’n, supra note 18, at 40; Dalton, supra note 18, at 277.
155 Dalton, supra note 18, at 277.
156 Bancroft & Silverman, supra note 18, at 115; Buel, supra note 98, at 735; see also Buel, supra note 98, at 736 n.61 (discussing a case where a man was granted custody of his four children despite his threats to kill his wife if she persisted in trying to obtain custody). According to one judge, “a person may be violent and vindictive towards a spouse and yet be the best, most loving, caring parent in the world.” Cahn, supra note 137, at 1073. One woman described her experience in family court this way: “The judge gave my husband custody of the kids, declaring that his violence towards me had nothing to do with his ability to be a good father. ‘It’s between the adults involved.’” Am. Bar Ass’n, supra note 100, at 13 (quoting anonymous woman).
As a more extreme example, courts on several occasions have awarded custody to batterers even after they were convicted for murdering the child’s other parent. See, e.g., In re James M., 135 Cal. Rptr. 222, 229 (1976) (finding that although the father was convicted of murdering the mother by stabbing her twenty-two times, that did not necessarily prove the father unfit to have custody of children); In re Lutgen, 532 N.E.2d 976, 987 (Ill. App. Ct. 1988) (finding that it was in the best interests of the children for the father to have custody, notwithstanding the fact that he had been convicted for choking their mother to death); Cahn, supra note 137, at 1077–81 (discussing additional cases). But cf. Am. Bar Ass’n, supra note 100, at 15 (recommending a rebuttable presumption against custody or visitation to a parent who has killed the other parent).
As one commentator aptly states, “the idea that battering is unrelated to parenting is almost beyond belief.” Cahn, supra note 137, at 1073.
157 See generally Bancroft & Silverman, supra note 18; Jeffrey L. Edleson, Problems Associated with Children Witnessing Domestic Violence, in Managing Your Divorce: A Guide for Battered Women 41 (Nat’l Council of Juvenile & Family Court Judges ed., 1998), available at http://www.ncjfcj.org/dept/fvd/publications/main.cfm?Action=SFVIP (last visited Feb. 8, 2004).
158 E.g., Cuthbert et al., supra note 1, at 2; Cahn, supra note 137, at 1055–58; Zorza, supra note 116, at 1115. For a powerful expression of the pain of witnessing domestic violence from a child’s perspective, visit the Gallery of Children’s Art, collected at the Minnesota Center Against Violence and Abuse, at http://www.mincava.umn.edu/documents/ drawings/ (last modified Apr. 22, 2003).
159 See Goodmark, supra note 7, at 245; Murphy, supra note 22, at 296; Weithorn, supra note 7, at 26–41. A few states have passed legislation that incorporates child exposure to domestic violence as a type of criminal child abuse. See, e.g., Ga. Code Ann. � 16–5–70(c) (2003); Weithorn, supra note 7, at 12. Some commentators argue that criminal penalties for exposing children to domestic violence send a clear message about the damage that it does to children. See Murphy, supra note 22, at 296; Weithorn, supra note 7, at 26. A few states have already implemented statutory reforms that increase the penalty for an existing crime, such as assault and battery, if the crime is committed in front of a child. Murphy, supra note 22, at 297; Weithorn, supra note 7, at 16; see also Audrey E. Stone & Rebecca J. Fialk, Criminalizing the Exposure of Children to Family Violence: Breaking the Cycle of Abuse, 20 Harv. Women’s L.J. 205 (1997).
160 See Am. Psychological Ass’n, supra note 18, at 101; Bancroft & Silverman, supra note 18, at 156.
161 The phrase “children exposed to batterers” might be more accurate. Bancroft & Silverman, supra note 18, at 2. While children are harmed by their awareness of battering incidents in the home, they also are at risk from simply being exposed to batterers: the typical parenting style of batterers, the way they affect the family dynamics, and their beliefs and attitudes. Id.
162 See Am. Bar Ass’n, supra note 100, at 1; Am. Psychological Ass’n, supra note 18, at 11; Goodmark, supra note 7, at 242–43.
163 See Am. Bar Ass’n, supra note 100, at 1; Am. Psychological Ass’n, supra note 18, at 11; Goodmark, supra note 7, at 242–43. Estimates range between 3.3 and 10 million witnesses in the United States annually. Am. Bar Ass’n, supra note 100, at 1. The estimate of 3.3 million is probably too low, as it is based on twenty-year-old data, and the research did not include families in which the parents were divorced or had children under age three. See John W. Fantuzzo & Wanda K. Mohr, Prevalence and Effects of Child Exposure to Domestic Violence, 9 The Future of Children: Domestic Violence and Children 21, 24 (Winter 1999), available at http://www.futureofchildren.org (last visited Feb. 8, 2004). A Massachusetts report concludes that 40,000 children in that state alone are exposed to battering in their homes each year. Cuthbert et al., supra note 1, at 2.
164 Am. Bar Ass’n, supra note 100, at 1; Goodmark, supra note 7, at 243.
165 Goodmark, supra note 7, at 243. Parents, however, often minimize what their children have seen or deny its impact. Id. In part, this is a coping strategy to allow the abused parent to survive the stress of abuse. Id. One study reports that 36% of children could describe the violence that had occurred when at least one parent reported the child had not witnessed the incident. Id. at 243–44 (citing Jeffrey L. Edleson, Children’s Witnessing of Adult Domestic Violence, 14 J. Interpersonal Violence 843–44 (1999)); see also Dalton, supra note 18, at 286 (stating that children witness much more violence than their parents report).
166 Cuthbert et al., supra note 1, at 2; see also sources cited supra note 21.
167 See Am. Bar Ass’n, supra note 100, at 1 (reporting that an estimated 87% of children in homes with domestic violence witness the abuse); Goodmark, supra note 7, at 243 (stating that children witness about half of all battering incidents).
168 See Am. Psychological Ass’n, supra note 18, at 101; Bancroft & Silverman, supra note 18, at 201.
169 Am. Bar Ass’n, supra note 100, at 1 n.13; Fantuzzo & Mohr, supra note 163, at 22; Weithorn, supra note 7, at 81–82. Early researchers referred to children as “witnesses” to violence. Fantuzzo & Mohr, supra note 163, at 22; Weithorn, supra note 7, at 81. Children are aware of violence in the home, even if they do not observe it first-hand. Am. Bar Ass’n, supra note 100, at 1 n.13.
170 See Bancroft & Silverman, supra note 18, at 2; Fantuzzo & Mohr, supra note 163, at 22; Weithorn, supra note 7, at 82.
171 Goodmark, supra note 7, at 244; see Weithorn, supra note 7, at 81.
172 Goodmark, supra note 7, at 244; Weithorn, supra note 7, at 82. For example, young children are often in their parent’s arms or in a crib nearby at the time of a battering incident. Goodmark, supra note 7, at 244; Weithorn, supra note 7, at 82. One study found that some batterers deliberately arrange to have their children watch the abuse. Am. Bar Ass’n, supra note 100, at 1 n.13; see also People v. Liberta, 474 N.E.2d 567, 569 (N.Y. 1984) (stating that defendant violently raped his wife during a visitation with his two-and-a-half year old son; he forced his wife “to tell their son to watch what the defendant was doing to her”).
173 Fantuzzo & Mohr, supra note 163, at 22; Goodmark, supra note 7, at 244; Weithorn, supra note 7, at 84.
174 Goodmark, supra note 7, at 244; Weithorn, supra note 7, at 82, 84. In one incident, the batterer pulled his son out of bed to clean up his battered and bleeding mother. Weithorn, supra note 7, at 82 n.357.
175 Goodmark, supra note 7, at 244; Weithorn, supra note 7, at 85.
176 Custody of Vaughn, 664 N.E.2d 434, 439 (Mass. 1996) (stating that it is well-documented that exposure to domestic violence profoundly affects children); Cuthbert et al., supra note 1, at 4; see Adams, supra note 120, at 24; Cahn, supra note 137, at 1055; Dalton, supra note 18, at 286; Zorza, supra note 116, at 1115. The court in Vaughn states that “a child who has been either the victim or spectator of such abuse suffers a distinctively grievous kind of harm.” Vaughn, 664 N.E.2d at 437.
177 Cahn, supra note 137, at 1055; Dalton, supra note 18, at 286; Goodmark, supra note 7, at 245.
178 Edleson, supra note 157, at 44. Studies on the role of gender have been somewhat contradictory, however, and thus may be inconclusive thus far. Dalton, supra note 18, at 286 n.58.
179 See Cuthbert et al., supra note 1, at 2; Edleson, supra note 157, at 42; Goodmark, supra note 7, at 246–47.
180 Cuthbert et al., supra note 1, at 2; Goodmark, supra note 7, at 246.
181 Edleson, supra note 157, at 42.
182 See Bancroft & Silverman, supra note 18, at 44; Goodmark, supra note 7, at 247. Children’s health problems resulting from exposure to domestic violence may begin even before birth. Bancroft & Silverman, supra note 18, at 44; Cuthbert et al., supra note 1, at 2. Battering often begins or intensifies during pregnancy. Am. Psychological Ass’n, supra note 18, at 31 (explaining that some experts suggest that the increased risk of battering during pregnancy takes place because the batterer is threatened by the coming child, while others believe that it explained by the fact that childbearing couples are younger); Goodmark, supra note 7, at 246; Mahoney, supra note 17, at 20 (suggesting that the onset of violence often coincides with a deepening of commitment to the relationship, such as marriage and pregnancy). Nearly 50% of abusive husbands batter pregnant wives, increasing by four times the likelihood that they will deliver low-birth weight infants. Am. Bar Ass’n, supra note 100, at 1. According to one study, approximately 156,000 to 332,000 women experience violence during pregnancy each year in the United States. Cuthbert et al., supra note 1, at 2. Furthermore, abused women report that during pregnancy, blows are often intentionally aimed at their abdomens. Bancroft & Silverman, supra note 18, at 44.
183 Am. Bar Ass’n, supra note 100, at 2; Bancroft & Silverman, supra note 18, at 44; Goodmark, supra note 7, at 247.
184 Am. Bar Ass’n, supra note 100, at 2; Bancroft & Silverman, supra note 18, at 44; Goodmark, supra note 7, at 247. Young children receive the most serious injuries. Goodmark, supra note 7, at 247; Zorza, supra note 116, at 1115. Older children, however, are more likely to be injured because they try to intervene to stop the violence. Goodmark, supra note 7, at 247; Zorza, supra note 116, at 1115; see also Weithorn, supra note 7, at 83 n.361 (describing an incident where a child was shot while trying to protect her mother from her father’s violence). One frequently reported statistic is that 63% of males between eleven and twenty years old who are incarcerated for homicide were convicted for killing their mother’s batterer. Am. Bar Ass’n, supra note 100, at 2 n.21; Goodmark, supra note 7, at 251; Salzman, supra note 110, at 334 n.29. But see Richard J. Gelles, Domestic Violence Factoids, Minnesota Center Against Violence and Abuse Electronic Clearinghouse (1995) (stating that the source and foundation of this statistic is not verifiable), at http://www. mincava.umn.edu/papers/factoid.htm (last modified Apr. 16, 2003).
185 Edleson, supra note 157, at 41; Fantuzzo & Mohr, supra note 163, at 27; Goodmark, supra note 7, at 250.
186 Edleson, supra note 157, at 41; Fantuzzo & Mohr, supra note 163, at 27.
187 Fantuzzo & Mohr, supra note 163, at 27; Goodmark, supra note 7, at 250.
188 Dalton, supra note 18, at 286; Salzman, supra note 110, at 331. For an extensive list of some of the emotional and behavioral problems exhibited by children exposed to battering, see Dalton, supra note 18, at 286 n.58.
189 Adams, supra note 120, at 24; Edleson, supra note 157, at 41.
190 Bancroft & Silverman, supra note 18, at 38; Goodmark, supra note 7, at 249–50. Some of the psychological abuse that children experience is a result of the batterer’s actions against the child’s parent. Bancroft & Silverman, supra note 18, at 37, 45. A batterer may be psychologically cruel to the child with the intent of intimidating his partner. Id. at 45. For example, one batterer relates that he shredded his teenage daughter’s prom dress because he wanted to punish his wife. Id. Also, as children often form strong attachments to pets, the commonly-used tactic of batterers to abuse or kill family pets may have severe emotional consequences for children. Id. at 37, 45.
191 See Buel, supra note 98, at 734.
192 Id.; Goodmark, supra note 7, at 249. One study found that juveniles who were exposed to domestic violence in their home were six times more likely to attempt suicide and had a 50% higher risk of drug abuse. Buel, supra note 98, at 734. One of the effects of this exposure is to create an increased sense of fatalism, leading juveniles to participate in reckless behavior such as drinking, abusing drugs, or using weapons. Goodmark, supra note 7, at 249.
193 Buel, supra note 98, at 734; Goodmark, supra note 7, at 251; Salzman, supra note 110, at 334 nn.27–28. For example, a Massachusetts study conducted by the Department of Youth Services found that children exposed to domestic violence were twenty-four times more likely to commit sexual assault, and seventy-four times more likely to commit crimes against persons. Buel, supra note 98, at 734 (citing Susan Guarino, Delinquent Youth and Family Violence: A Study of Abuse and Neglect in the Homes of Serious Juvenile Offenders (Mass. Dep’t of Youth Servs. Publ’n No. 14,020–200–74–2–86–CR, 1985)); Goodmark, supra note 7, at 251 (same); Salzman, supra note 110, at 334 nn.27–28 (same).
194 Zorza, supra note 116, at 1116 (explaining that sons who witness the abuse of their mothers are at increased risk of perpetrating violent crimes as adults); see Salzman, supra note 110, at 331.
195 Am. Psychological Ass’n, supra note 18, at 24.
196 Salzman, supra note 110, at 331.
197 Goodmark, supra note 7, at 250.
198 E.g., Am. Bar Ass’n, supra note 100, at 1; Buel, supra note 98, at 736; Goodmark, supra note 7, at 248. According to one court:
Children learn several lessons in witnessing the abuse of one of their parents. First, they learn that such behavior appears to be approved by their most important role models and that the violence toward a loved one is acceptable. Children also fail to grasp the full range of negative consequences for the violent behavior and observe, instead, the short term reinforcements, namely compliance by the victim.
Patricia Ann S. v. James Daniel S., 435 S.E.2d 6, 18 (W. Va. 1993). Although there is a high correlation between childhood exposure to battering and abusive relationships in adulthood, it is not an inevitable link. Am. Psychological Ass’n, supra note 18, at 22. Many adult perpetrators report no history of exposure and many children who witness domestic violence do not become abusive adults. Id. Researchers, however, caution against drawing concrete conclusions, because studies have thus far used a self-reporting methodology, which has limitations. Weithorn, supra note 7, at 90 n.403.
199 Am. Psychological Ass’n, supra note 18, at 34, 113; Buel, supra note 98, at 735.
200 See Am. Psychological Ass’n, supra note 18, at 32; Buel, supra note 98, at 734.
201 See Bancroft & Silverman, supra note 18, at 42; Buel, supra note 98, at 733.
202 Bancroft & Silverman, supra note 18, at 42; Buel, supra note 98, at 733.
203 Am. Bar Ass’n, supra note 100, at 18 (40–60%); Buel, supra note 98, at 733 (70%); Cahn, supra note 137, at 1056 (70%); Dalton, supra note 18, at 286 (20–100%). It may be difficult to disentangle the two forms of abuse as they are often interrelated. See Weithorn, supra note 7, at 83. Individual incidents, for example, may involve both child abuse and partner abuse, with the parent being battered for stepping in to protect the child or vice versa. Id. The batterer may also lash out at various family members simultaneously. Id.
204 Bancroft & Silverman, supra note 18, at 43; Buel, supra note 98, at 733–34; Cahn, supra note 137, at 1056.
205 Bancroft & Silverman, supra note 18, at 84. For an extensive discussion of the link between partner abuse and incest, see Lundy Bancroft & Margaret Miller, The Batterer as Incest Perpetrator, in The Batterer as Parent, supra note 18, at 84–97.
206 Bancroft & Silverman, supra note 18, at 97.
207 Id. at 85; Goodmark, supra note 7, at 247.
208 Bancroft & Silverman, supra note 18, at 153.
209 Dalton, supra note 18, at 288.
210 See Bancroft & Silverman, supra note 18, at 153; Buel, supra note 98, at 734. For example, studies of abused parents who sought abuse prevention protection orders against their batterers found that those who had children in common with the batterer were nearly four times as likely to suffer further abuse. Bancroft & Silverman, supra note 18, at 152–53.
211 See discussion supra Part II.B.
212 Bancroft & Silverman, supra note 18, at 153; Buel, supra note 98, at 734.
213 See Bancroft & Silverman, supra note 18, at 19, 156; Cuthbert et al., supra note 1, at 33. Children may still be at risk of direct abuse as well, although there do not appear to be any studies specifically investigating post-separation child abuse. Bancroft & Silverman, supra note 18, at 43. Since the correlation between child abuse and partner abuse follows logically from the batterer’s attitudes and patterns of behavior, there is no reason to believe the risk would decrease. Id. In addition, the batterer’s partner is no longer present to intervene on behalf of the children. Id. at 44.
214 Bancroft & Silverman, supra note 18, at 19, 153, 156; see also Cuthbert et al., supra note 1, at 33 (discussing a case where visitation, supervised by the batterer’s new partner, was terminated when it was revealed that the batterer had been physically abusing the new partner).
215 See Am. Psychological Ass’n, supra note 18, at 101; Bancroft & Silverman, supra note 18, at 156. The American Bar Association recommends that the occurrence or recurrence of domestic violence after a court has entered custody or visitation orders should satisfy the “material change in circumstances” basis required for modification of those orders. Am. Bar Ass’n, supra note 100, at 14.
216 See Dalton & Schneider, supra note 15, at 450; GAL Report, supra note 25, at 5.
217 See Cuthbert et al., supra note 1, at 73 (concluding the GAL system needs substantial reform); Dalton & Schneider, supra note 15, at 451 (arguing that the current level of insight among GALs is insufficient to evaluate family dynamics accurately when there is a history of domestic violence); Ducote, supra note 22, at 136 (calling the placing of children in the care of batterers a “tragedy” that occurs because of GALs).
218 See Ducote, supra note 22, at 109 (arguing that the GAL system should be eliminated for a number of reasons, including the disappointing actions of GALs in cases involving domestic violence).
219 See Cromley, supra note 78, at 568; Elrod, supra note 20, at 57.
220 See discussion infra Part III.
221 See Buel, supra note 98, at 733 (recommending the use of GALs to ensure that children’s interests are protected in cases involving domestic violence issues); Muhlauser & Knowlton, supra note 84, at 1022 (stating that the role of the GAL has greater importance in domestic relations cases, especially domestic violence cases); Murphy, supra note 22, at 287 (suggesting that GALs are particularly necessary in custody and visitation litigation); cf. Mass. Senate Comm. on Post Audit and Oversight, Guarding Our Children: A Review of Massachusetts’ Guardian Ad Litem Program Within the Probate and Family Court, S. Rep. 1828, 2000 Sess. (Mass. 2001) (finding, after reviewing GAL system, that standards should be enacted, and not suggesting elimination of the system), at http:// www.state.ma.us/legis/senate/guardchild.htm (last visited Feb. 8, 2004); Bancroft & Silverman, supra note 18, at 197–200 (recommending not abolition, but that specific actions should be taken by GALs in custody disputes involving domestic violence); Cuthbert et al., supra note 1, at 74 (arguing for reform of GAL system, not elimination).
222 See Ducote, supra note 22, at 109.
223 See generally Lidman & Hollingsworth, supra note 28; Muhlauser & Knowlton, supra note 84; Stuckey, supra note 28.
224 See Muhlauser & Knowlton, supra note 84, at 1026. Higher risk cases are defined as those involving protracted litigation, child sexual abuse allegations, emotionally disturbed children, and children in persistently violent homes. Id.
225 See Buel, supra note 98, at 733; Cahn, supra note 137, at 1071; Dalton, supra note 18, at 276.
226 See GAL Report, supra note 25, at 2, 14; Dalton, supra note 18, at 286 (finding that GALs play a pivotal role in protecting children’s interests).
227 See Dalton & Schneider, supra note 15, at 450 (discussing anecdotal charges that GALs were serving children poorly).
228 Cuthbert et al., supra note 1, at 16; Family Violence Project, supra note 112, at 220; Zorza, supra note 116, at 1119.
229 Custody of Vaughn, 664 N.E.2d 434, 439 n.10 (Mass. 1996) (noting that it is not wrong to give weight to the testimony of a GAL who is not a domestic violence specialist since “a qualified clinical psychologist with experience in family matters will . . . have encountered this issue in his training and, unfortunately, all too frequently in his clinical practice”). But see Bancroft & Silverman, supra note 18, at 200 (asserting that GALs without a background in domestic violence should seek consultation from a domestic violence professional on all custody cases involving battering).
230 Dalton & Schneider, supra note 15, at 449. Graduate training programs for psychologists have traditionally ignored domestic violence issues. Bancroft & Silverman, supra note 18, at 119. Law schools offer some, but not enough, courses on domestic violence. Buel, supra note 98, at 722. For example, domestic violence is generally not incorporated into law courses discussing custody. Family Violence Project, supra note 112, at 214; see also Deborah Goelman et al., When Will They Ever Learn? Educating to End Domestic Violence: A Law School Report (1997) (describing the need to incorporate domestic violence issues into the law school curriculum). For a survey of legal education programs focusing on domestic violence, see Goelman et al., supra; Mithra Merryman, A Survey of Domestic Violence Programs in Legal Education, 28 New Eng. L. Rev. 383 (1993).
231 Dalton & Schneider, supra note 15, at 452 (noting that employees of the Massachusetts Probate and Family Court receive domestic violence training, but GALs do not); Family Violence Project, supra note 112, at 220. According to one limited survey, GALs were identified as the family court professionals with the least amount of training in domestic violence. Family Violence Project, supra note 112, at 220. The survey was conducted by interviewing judges, attorneys, advocates, court administrators, court services personnel, and law professors in the eight states (Delaware, Florida, Idaho, Louisiana, Minnesota, North Dakota, Oklahoma, and Wisconsin) that at that time had enacted custodial presumption statutes. Id. at 208 n.54, 211 n.70.
232 See Bancroft & Silverman, supra note 18, at 198; Cahn, supra note 137, at 1082; Dalton, supra note 18, at 283.
233 Am. Psychological Ass’n, supra note 18, at 13; Cuthbert et al., supra note 1, at 40. Hard evidence is also frequently lacking in abusive relationships; thus, credibility may be the determining factor. Cahn, supra note 137, at 1082. A thorough investigation, however, will often eliminate the need to rely on personal impressions. Bancroft & Silverman, supra note 18, at 198.
234 See Bancroft & Silverman, supra note 18, at 198; Cahn, supra note 137, at 1082; Dalton, supra note 18, at 283.
235 See, e.g., Bancroft & Silverman, supra note 18, at 119, 199; Adams, supra note 120, at 23; Buel, supra note 98, at 740. Personal observations of the batterer should be compared to the batterer’s past and current behavior and should not be weighed heavily by the GAL. Bancroft & Silverman, supra note 18, at 199.
236 See Bancroft & Silverman, supra note 18, at 39.
237 Id. at 39–41. Traumatic bonding describes the unusually strong but unhealthy bond that develops between two people when one is abusive. Id. It is also known as “Stockholm Syndrome.”