[Sources: Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389; Robert A. Simon, Ph.D.]

Under the Family Code in the State of California, domestic violence towards a parent is attributable towards children whether or not the children are present, witnessed it or even have knowledge of it. See Family Code §3044. Sadly, in many cases, the children are present, in the direct line of fire, and have experienced terror of watching an assault on their parent. In People v. Kovacich (2011) 201 Cal.App.4th 863, 895, witnessing “defendant’s assault on the family dog amounted to ‘abuse’ within the meaning of Family Code section 6203″.

The Legislature’s sensitivity to this issue is not surprising given the abundance of social science studies showing a direct correlation between abuse against a parent and abuse against the children of that parent. [1][2] Most of the studies show that in 30-60 percent of families where either child abuse or spousal abuse exists, both forms of the abuse exist, a phenomenon reflective of the sad reality that some batterers abuse children as a way to inflict pain on the abused spouse. There is also a link in the severity of spousal and related child abuse. A number of the studies show that the more severe the spousal abuse, the more severely the battered spouse’s child is likely to be abused. The overlap between children witnessing domestic violence and being abused themselves has been widely documented as well. In short, the interests of the children are, as a practical matter, bound up with the interests of their parent.

Domestic violence (DV) is a phenomenon that is complex and that impacts all members of the family whether or not they are the direct recipient (victim) of the violence or not. Indeed, amongst scholars and experts in the field of DV, it is understood that in families, when DV is perpetrated against a parent, the children are also considered victims even if they do not have direct knowledge of the DV. Thus, the belief that a child is unaffected by DV if they do not know about it or witness it is without merit and must be rejected. Why is this the case? Actual discrete acts of DV, be they physical, verbal, emotional, financial or otherwise, are the “tip of the iceberg” so to speak. DV is a phenomenon that is systemic and transactional in nature. It is not so much a discrete event as it is emblematic of a relational style and therefore a series of events. It is embedded in the context of other interactions that while they may not directly exemplify DV, are the precursors of DV and are part of the interactional/relational dynamic of DV.

Perpetration of DV is something that demonstrates some key interactional/relationship features. As an initial matter, the issue of empathy should be addressed. Empathy is the ability to “feel with” another person and to put yourself in their shoes and therefore have the ability to understand what they experience whether or not their experience is the same as yours. Empathy is a quality that assists people in modulating and controlling their behavior because they know what it would feel like if something were done to them. Those who perpetrate DV are, therefore, people who likely lack empathy or who at least struggle to be easily and readily empathic towards others.

Empathy is a quality that is intimately involved in appropriate, positive and healthy parenting. Empathy predicts attunement and empathy predicts a parent who can recognize the child’s needs as separate from theirs, identify these needs easily, respond to them efficiently and effectively and in so doing, build and reinforce a secure attachment and reciprocal connectedness with the child. Especially in very young children, parents carry the emotional, behavioral and cognitive regularly functions for children until they are developmentally and neuropsychologically able to internalize these functions and become more autonomous in their functioning. The empathic parent intuitively and smoothly responds to the child and in doing so repeatedly helps the child to progressively internalize these self-regulatory functions. In addition, the empathic and attuned parent is a parent who is able to foster and nurture self-esteem, a positive identity and a healthy sense of self in the child. In this discussion of empathy and the relationship between empathy (or its lack) in perpetrators of DV, it become clear how even if a child is not aware of DV and does not witness it, the child is at risk and need protection.

When there is DV in a family, the victim members of the family are at risk to experience trauma. Trauma is not only a psychological phenomenon. It is also a neuropsychological phenomenon. Very young children are neuropsychologically immature. In fact, the human brain does not fully develop until at least age 25. When emotional trauma is experienced by the growing child, the normal growth and development of the growing child’s brain is affected. Because the emotional center of the brain and important cognitive centers of the brain, especially those involved in memory, are co-located, the neuropsychological impact on the growing child’s brain is not only emotional It can also be cognitive in nature. Because of how trauma affects the brain, the younger the child is when experiencing the trauma, the more pervasive the impact of the trauma is on the developing brain. In turn, the earlier the trauma, the more likely it is that the trauma becomes a “life sentence” for the child because of its impact on the developing brain. While it is important to protect all children from DV and its effects, it is particularly important to protect the young child. Indeed, the common idea that the young child is not yet old enough to understand what is going on and therefore is less likely impacted by it is false. As should be clear, while the very young child may or may not have a conscious memory of traumatic events, the impact of the trauma is profound and potentially life long.

Finally, another feature of DV and those who perpetrate DV is, typically, power and control. The goal of DV is to disempower the victim(s) and remove their sense of agency. This is accomplished both in the actual discrete violent acts, be they physical, verbal, emotional or financial as well as in the everyday subtle interactions and transactions between the perpetrator and the victim(s). It is this day-in-day-out interactional style that reinforces the power and control needs of the perpetrator and that reinforces the pernicious nature of DV. To be sure, parents are powerful people in the lives of children and they control multiple aspects of the child’s life. This is how it should be and how it needs to be. However, in appropriate and empathic/attuned parenting, the use of parental power and control is directed at meeting the child’s needs, protecting the child and effectively executing the regulatory functions the child has not yet internalized For the perpetrator of DV, the power and control dynamic go far beyond this and extends to having dominion over the child and subjugating the child rather than fostering the child’s ever-increasing striving towards independence, autonomy, mastery and self-determination. Although it may be subtle, one can see in the everyday interactions between a DV perpetrating parent and a child the skewed and distorted nature of the parent-child interactions. Especially for the very young child, this is something that increases the child’s risks for psychosocial and developmental maladaptation.

If you have a tough case where your children were involved, speak with an experienced family law attorney. We suggest you contact an attorney who has significant experience in high conflict custody cases. There are a number of professionals who market themselves as family law attorneys but few of them have the experience necessary to successfully handle them.

[1][2] Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, citing, Edleson, The Overlap Between Child Maltreatment and Woman Abuse (1997) (rev. April 1999) National Electronic Network on Violence Against Women http://www.bvsde.paho.org/bvsacd/cd67/AR_overlap.pdf [as of June 9, 2016], pp. 2–3; see also Meisner & Korn, Protecting Children of Domestic Violence Victims with Criminal No-Contact Orders (April 2011) AEquitas: The Prosecutor’s Resource on Violence Against Women, STRATEGIES Newsletter http://www.aequitasresource.org/Protecting-Children-of-Domestic-Violence-Victims-with-Criminal-No-Contact-Orders.pdf [as of June 9, 2016], p. 1; Hart & Klein, Practical Implications of Current Intimate Partner Violence Research for Victim Advocates and Service Providers (2013) National Criminal Justice Reference Service https://www.ncjrs.gov/pdffiles1/nij/grants/244348.pdf [as of June 9, 2016], p. 64 (Practical Implications) [citing over 30 studies showing 41% median co-occurrence of child maltreatment and adult domestic violence].)