Abstract
While mediation is commonly used in custody negotiation, there is no consensus regarding its applicability in domestic violence cases. The aim of this qualitative study in Italy was to explore the role of family mediation in the management of child custody in cases involving domestic violence. Semistructured interviews were conducted with lawyers (N = 5), social workers (N = 15), and abused women who had separated from their children’s fathers (N = 13). Legal documents were also analyzed. The results showed that violence against women and children had often been concealed during mediation, as the professionals involved had failed to detect domestic violence or had labeled it as conflicts. Moreover, the “parental couple” had been dissociated from the “marital couple,” and the responsibility for the abuse had been attributed to both parents. As a result, women and children had been blamed and had experienced secondary victimization, while the perpetrators’ patterns of power and control had continued. The results also revealed that those professionals had not known about and had not applied the Istanbul Convention, which provides guidelines to ensure women’s and children’s safety. Recommendations highlight the need to account for the complexity of domestic violence cases, to hold perpetrators responsible for the abuse, and to support the victims.
Following a separation or a divorce, the former partners have to reach an agreement regarding child custody and child contact issues. In European Union (EU) countries like in many other countries, decisions regarding custody and contact arrangements are based on the principle of the best interest of the child (Council of Europe Regulation No. 2201/2003). While family mediation is commonly used in custody negotiation, there is no consensus regarding its applicability in domestic violence cases (Casas Vila, 2017).
In Italy, the Law 54/2006 introduced joint custody as the preferred model in custody cases, and mediation as the principal mechanism to reach an agreement between parents. The primary objective of this legislation was to guarantee the continuity of affective bonds, thus attributing equal importance to both parents. Under this legislation, both parents retain parental authority and they must provide for their children according to their income (Istituto Nazionale di Statistica, 2015–2016). This is in line with the fact that EU countries now recognize that children have the right to a personal relationship and direct contact with both parents (Council of Europe, 2003). In this context, the children’s best interest is seen in terms of shared custody and coparenting. Parents are expected to share the legal responsibility for the child and face-to-face contact is presumed to be in the best interests of the child (Eriksson, 2011).
This legislation was reformed with the introduction of the Law 219/2012 and the Legislative Decree n.154/2013, which reaffirmed the principle of coparenting but allowed sole custody when shared custody is contrary to the best interest of the child. However, there is no clear definition of the best interest of the child and there is no criteria to identify those cases where shared custody is contrary to the best interest of the child. Domestic violence and child abuse are not mentioned in this legislation.
The Istanbul Convention (Council of Europe, 2011), the first European legally binding policy that creates a comprehensive framework to protect women and children against violence, was ratified by Italy in 2014. The Article 31, “custody, visitation rights and safety,” established that, in the determination of custody and visitation rights of children, incidents of violence must be considered in order to ensure the rights and safety of the victim. While in other countries mediation is an option in cases of domestic violence (see Ver Steegh, 2002), the Article 48 (see below) clearly banned mediation in cases of violence (Council of Europe, 2011). However, there are no studies in Italy about the application of the measures presented above. This article presents results from a study that explored the role of family mediation in the management of child custody in cases involving domestic violence.
Literature Review
Postseparation violence and child contact
Although violence is a key factor in many women’s decisions to end an abusive relationship (Kurz, 1996), separation does not always stop the violence and women who have children are more likely to experience postseparation violence (Campbell et al., 2003; Hardesty & Chung, 2006). Therefore, separation does not necessarily prevent the abuse of women or their children. On the contrary, physical abuse, harassment, and stalking often continue and escalate after separation (Bailey, 2013; Hardesty & Chung, 2006; Jaffe, Lemon, & Poisson, 2003; Rivera, Sullivan, & Zeoli, 2012; Saunders & Oglesby, 2016). In this regard, Radford, Hester, Humphries, and Woodfield (1997) showed that 50% of children who had had contact with the nonresident father following their parents’ separation had been abused by their fathers during contact. Moreover, murders of women and children who have a history of domestic violence frequently take place at the point of separation (Hotton, 2001), including during child contact (Saunders, 2004). In addition, some perpetrators appear to use the legal system to harass and maintain control over their ex-partners (Bancroft & Silverman, 2004; Hardesty & Ganong, 2006; Slote et al., 2005). When postseparation violence is neglected, safety issues for women and children may not be systematically assessed, and this can lead to a “judicial failure to protect” (Harrison, 2008; Radford & Hester, 2015). The judicial system from which the protective parent and child are seeking justice and protection is comprised of judges who lack sufficient training in domestic violence issue. Thus, domestic violence and child protection becomes only incidentally a custody question (Harrison, 2008; Saunders, 2004).
In this context, Hester (2011) theorized “the three planet model.” While the “domestic violence planet” and the “child protection planet” focus on what happened in the past, the “child contact planet” focuses on the future. The approach means that a history of domestic violence is deemed to be in the past and thus irrelevant to child custody decisions (Hester, 2011). Therefore, in contrast with the domestic violence planet and the child protection planet, the child contact planet is based on the idea that mediation can be beneficial when parents find it difficult to agree on custody and contact arrangements.
Child custody and domestic violence
In court proceedings, the reality of living with coercively controlling violence and the potential ongoing risks it poses to children and nonabusive parents are typically negated (Jeffries, 2016). There are still important difficulties among professionals in social and legal services with regard to the identification of domestic violence, which is often mislabeled as “conflicts” between partners (Araji & Bosek, 2010; Johnson, Saccuzzo, & Koen, 2005; Pirrone, 2017; Saunders, Faller, & Tolman, 2015). In this context, postseparation violence and its long-lasting effects are ignored and have therefore no bearing on custody decisions (Bancroft & Silverman, 2002; Haselschwerdt, Hardesty, & Hans, 2011). Several studies show little or no differences in custody outcomes between cases with a history of domestic violence and cases with no such history (Kernic, Monary-Ernsdorff, Koepsell, & Holt, 2005; O’Sullivan, King, Levin-Russell, & Horowitz, 2006; Pranzo, 2013).
Some judges and lawyers can also believe that mothers make false allegations and alienate their children and that sole custody should be with the father (Saunders et al., 2015; Saunders & Oglesby, 2016). Indeed, research evidence suggests that mothers who raise issues regarding their ex-partners’ violence tend to receive less than favorable custody rulings (Silberg, Dallam, & Samson, 2013). A study also revealed that women who had informed mediators that they had experienced domestic violence had been less likely than the perpetrators to be granted sole custody (Saccuzzo & Johnson, 2004). In contrast, fathers who had been accused of domestic violence had been as likely as nonabusive fathers to get custody of their children (Kernic et al., 2005; Saccuzzo & Johnson, 2004). The father’s role remains unchallenged, even when his previous or continuing violence has been acknowledged by professionals (Harrison, 2008).
Even though joint custody and coparenting are often unrealistic and unsafe when there is a history of domestic violence (Hardesty, 2002), courts seem to be reluctant to restrict custody and contact (Dunford-Jackson, 2004).
Family mediation
Mediation is a process of conflict management and disputes resolution, in which two or more parties turn freely to a neutral third party, the mediator, to reduce the “collateral” effects of a conflict (Council of Europe, 2003). Family mediation applies especially to situations of separation or divorce when there are children involved (Casas Vila, 2017). When parents cannot reach an agreement on their own, courts may ask a mediator to help the parents reach an agreement by focusing on the children’s best interest (Casas Vila, 2017; Emery, 1994). The aim of family mediation is to seek a conclusion that is acceptable for the mediated partners, without discussion of blame or responsibility (Art. 1, Recommendation 1639(2003), Council of Europe). The focus is on the present and the future. Mediators attempt to treat the parties equally and assume they have the same “power and control.” While parties can sometimes access mediation voluntarily, in some countries, the court can impose mediation with or without the agreement of the parties (Council of Europe, 2003). The “mandatory mediation” is more problematic for women than for men (Grillo, 1991). Forcing unwilling women to take part in a process which involves much personal exposure sends a powerful social message: It is permissible to discount the real experience of women in the service of someone else’s idea of what will be good for them, good for their children, or good for the system (Grillo, 1991).
Family mediation and domestic violence
Studies conducted in the United States have shown that domestic violence had been present in more than two third of family mediation cases imposed by a judge (Beck & Sales, 2001). Other studies reveal that 40–80% of family mediation cases involve domestic violence (Beck & Raghavan, 2010; Kelly & Johnson, 2008; Pearson, 1997). However, mediation is highly problematic in domestic violence cases. First, the shared responsibility model that underlies mediation is likely to lead to practices that blame abused women for their ex-partners’ violence (Romito, 2008). According to this (Romito, 2008), “it seems that the mediation is proposed or imposed precisely when there were serious conflicts accompanied by violence, as in other cases parents usually agree among themselves on the management of children” (p. 75).
Second, the recourse to mediation in domestic violence cases is contradictory with the mediation principle of equality between the parties (Casas Vila, 2017). It could also be argued that this is in opposition to women’s human rights (Rioseco, 1999), as forcing abused women to be present in a room and to negotiate with their perpetrators can be unsafe. Indeed, psychological abuse is likely to occur during the mediation sessions (Dalton, Carbon, & Olesen, 2003; Johnson et al., 2005; Salem & Dunford-Jackson, 2008). In the same vein, the patterns of power and control may continue during mediation, causing survivors to be less able to negotiate for safe and satisfactory custody arrangements and financial settlements (Imbrogno & Imbrogno, 2000; Johnson et al., 2005; Rivera, Zeoli, & Sullivan, 2012). For all these reasons, victims of domestic violence are greatly disadvantaged in the mediation process (Johnson et al., 2005).
In 2010, the United Nations stated that “the legislation prohibits explicitly mediation in cases of violence against women, before or during the judicial proceedings.” More recently, the Article 48 of the Istanbul Convention (Council of Europe, 2011) entitled “prohibition of mandatory alternative dispute resolution processes or sentencing” states that “parties shall take the necessary legislative or other measures to prohibit mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence.”
Nevertheless, the empirical evidence demonstrates important limitations and deficiencies in the assessment of both domestic violence and child abuse in family mediation (Saccuzzo & Johnson, 2004). Research evidence suggests that violence is rarely considered in custody recommendations and that most mediators tend to recommend joint custody despite the violence (Johnson et al., 2005; Rivera, Sullivan, et al., 2012; Rivera, Zeoli, et al., 2012). In addition, male perpetrators are often viewed in more positive terms than their female partners; those men can appear to be more suitable parents and can manipulate mediators by expressing a desire for joint custody (Dalton et al., 2003). In Italy, no study has investigated family mediation practices in cases involving domestic violence.
Theoretical Framework
In recent years, there has been growing awareness regarding violence against women and children. However, unless we specifically address who is perpetrating the violence and how it tends to be covered up by society, we fail to go to the heart of the problem (Romito, 2008). Bandura, Barabranelli, Carpara, and Pastorelli (1996) theorized the mechanisms of moral disengagement in the exercise of moral agency. The regulatory self-sanctions can be selectively disengaged from detrimental conduct by converting harmful acts to moral ones through linkage to worthy purposes, obscuring personal causal agency by: diffusion and displacement of responsibility; misrepresenting or disregarding the injurious effects inflicted on others; and vilifying the recipients of maltreatment by blaming and dehumanizing them. (Bandura et al., 1996, p. 364).
Method
This study explored the role of family mediation in the management of child custody in domestic violence cases in Italy. It draws upon interviews that were conducted with lawyers, social workers, and mothers who had separated from their abusive partners. Lawyers and social workers, as main professionals involved in child custody issues, were interviewed in order to explore their theoretical choices, beliefs, and stereotypes and the meaning they gave to their evaluations and actions. Women were interviewed to recreate longitudinally their intimate partner violence history and child custody issues. In this context, legal documents were collected. Given that limited studies have focused on this issue, particularly in Italy, a qualitative methodology was designed (Denzin & Lincoln, 2005), a method implying that data collection is lead by “sensitizing concepts,” while innovative concepts, hypothesis, and a theoretical model will be a result of the study. More specifically, we used a “case study approach,” which refers to “a strategy for doing research which involves an empirical investigation of a particular phenomenon within its real-life context, using multiple sources of evidence” (Babbie, 2010, p. 325).
Sampling Strategy
A snowball sampling was used in this study (Denzin & Lincoln, 2005). The sample was constituted through “word of mouth” and through the names provided by both the participants themselves and our colleagues. Starting from different contact sources to select the participants is an important aspect in the creation of a qualitative sample (Babbie, 2010). The selection criteria for professionals (lawyers and social workers) was that they had previously been involved in child custody cases. The criteria for women were that they had experienced domestic violence, they had at least one child (under 18 years old) with the perpetrator, and they were no longer in an intimate relationship with the violent partner. The women were recruited through shelters. The recruitment was conducted in different regions of Northern Italy in order to increase the validity of the research findings. The total sample included 5 lawyers, 15 social workers, and 13 abused women. The sample size was based on saturation principle, which means that we stopped recruiting participants once we concluded that new data did not shed any further light on the issue under investigation (Glaser & Strauss, 1967). All the participants took part in the study on a voluntary basis. Written informed consent was required, and confidentiality was guaranteed.
Research Participants
Interviews were conducted with lawyers, social workers, and abused women who had separated from their children’s fathers. The five lawyers who took part in this study were aged between 39 and 59 years old (M = 47.4) and were all Italian. Four were female and one was male. All were independent professionals. They had between 3 and 25 years (M = 12.4) of practice experience. The 15 social workers were aged between 30 and 60 years old (M = 40) and were also all Italian. Fourteen were female and one was male. The social workers had been employees in public services, for between 5 and 34 years (M = 14). Specific domestic violence trainings was not required for the professionals who were interviewed in this study.
The 13 women who took part in the study were aged between 28 and 57 years old (M = 41.8). Eleven were Italian and two were migrants from Eastern Europe. They had a middle high level of education and were all employed at the time of the interviews. Four women had one child, seven had two children, one had three children, and one had five children. The children were aged between 1 and 28 years at the time of the interviews. All these women had experienced psychological violence, 11 had also experienced physical violence and six had experienced sexual violence. The women’s children had witnessed the violences and in most cases had also directly been abused by the domestic violence perpetrator. All those women had experienced postseparation violence.
Instruments and Procedure
Data were collected through individual semistructured interviews (Kaufmann, 2007). Face-to-face interviews were conducted between January and December, 2016. The interviews were carried out with the “long interview” approach, which starts with a few questions and invites the participants to express their views and to introduce new subjects (Kaufmann, 2007). The interviews with lawyers addressed the following themes: legal procedure in cases of child custody in situation of domestic violence, mediation, the Istanbul Convention, and its application. The interviews with social workers included the following topics: child custody and domestic violence: the role of social services, mediation practices, and the Istanbul Convention. Finally, the interviews with abused women focused on the following issues: their history of domestic violence and child custody issues, legal proceedings: social workers’ and mediators’ practices, and their mediation experiences and the outcomes. Documents were also made available by the women who took part in this study, including decrees of ordinary and juvenile court, social services’ reports to court, and psychological expertise reports to court. All the interviews were recoded and then transcribed verbatim (Babbie, 2010). The transcripts were then anonymized to ensure the participants’ confidentiality. Finally, we gave to each woman interviewed a pseudonym.
Analysis
Content analysis was carried out on both the interview transcripts and the documents, in accordance with the theoretical models developed by Bandura et al. (1996) and (Romito, 2008). The analysis involved the following steps: definition of recording units, construction of categories for analysis, identification of the core categories, test of the coding and assessment of the reliability (multiple coders), and searching for the “negative case,” development of a model and interpretation (Babbie, 2010). One researcher carried out a preliminary definition of the recording units and the identification of categories, and this work was shared with two members of the research team. An agreement was reached among those three researchers. For the purpose of this article, selected quotes were translated from Italian into English and were then translated back into Italian to ensure their accuracy.
Ethics
The study was conducted in accordance with the ethical guidelines for research on violence against women published by the World Health Organization (2001) and with the guidelines for research in psychology published by the Associazione Italiana di Psicologia. The research was approved by the ethics committee of University of Trieste.
Results
The research findings were divided into four main categories, which are presented below. The first section reveals a misuse of family mediation. The second section highlights the tendency to conceal domestic violence, through different tactics, such as euphemizing, separating, and blaming. The following sections argue that mediation is at the services of violent fathers and look at the consequences for both abused women and their children.
Misuse of Family Mediation
In Italy, family mediation is banned in case of domestic violence. Nevertheless, family mediation is often made mandatory during the child custody procedures. In this regard, the lawyers’ accounts revealed that the convention was very often unknown and poorly applied The Istanbul Convention is scarcely known and scarcely applied. (Lawyer 5) I never see a judge that mentions the Istanbul Convention. (Lawyer 4) When a couple has decided to separate, we must always help them to focus on their parenthood and mediation is the only way when there’s a high conflict! (Social worker 4) Mediation requires certain features and parenting resources that parents don’t always have. So, where there is a mental distress, a cognitive limitation, in situations of violence, these’re all conditions in which couples aren’t be mediated. Because there is a imbalance of power within the couple! (Social worker 13) Judge prescribed to me and my ex-husband to do mediation for the children(…) And during the period of supervised father–children contacts and protective order, we started the mediation. (Maria)
Concealment of Domestic Violence
Overall, in the child custody, cases reported in this study domestic violence had been concealed throughout the mediation process. The concealment is accomplished through the application of different tactics such as euphemizing, separating, and blaming. Moreover, family mediation, as applied in cases of domestic violence, resulted in maintaining unequal power between the ex-partners.
Euphemizing: Labeling violence as conflict
This tactic consists in labeling a phenomenon inaccurately in order to hide the violence and the perpetrators’ responsibilities (Romito, 2008). This linguistic avoidance is systematic in the court documents and in the social workers’ discourses. Indeed, the court’s documents showed an inappropriate use of words, namely, the widespread tendency to call conflicts what are incidents of violence.
Despite the presence of criminal complaints, medical reports, and depositions of women in courts, the documents written by judges referred to conflicts. For instance, in cases where violent incidents had been reported to the police, but the judges would still label those situations as conflicts: The judge prescribes to both parents to access Services (Family Clinic) for mediation due to marital conflict. (Anna’s document) Obligation for both parents, to undertake a massive family mediation at the Family Clinic in order to diminish their conflict. (Giada’s document) There was a strong episode and she decided to go with the children (…) Now he, who doesn’t accept the separation, tries to reacquire his wife, also using the children…this’s very frequent in the conflictual situations. (Social worker 14) In a highly conflictual situation…she was heavily beaten up…(Social worker 15)
Overall, the fact that violence and its serious consequences for women and children had disappeared from the professionals’ assessments had contributed to make mediation a legitimate and acceptable practice. In the following quote, a woman reported what appears to be a typical situation. In this situation, the woman’s ex-partner had continued to be abusive toward her during mediation sessions, but this issue had not been recognized by the mediator: During mediation he told me that I’m the most disgusting, slimy and miserable person, that he cannot face me because I’m ugly. He said that I tell lies, that I divert children and that he isn’t violent. He shouts, screams, so I’m forced to calm him down…if it depends on mediators, they have already said “this mediation isn’t feasible,” because we are always too conflictual. (Paola)
Separating: Spouses versus parents
The goal of family mediation is to help the two ex-partners to focus on their parental role and to separate it from the couple issues (Romito, 2008). So, family mediation is seen as a key mechanism to strengthen the principle of coparenting.
In the social workers’ accounts, domestic violence was also overlooked through the separation tactic, in which ex-spouses and parents were presented as distinct from each other. In this context, the violences perpetrated by men toward their female partners and the children’s exposure to this violence are ignored because, as illustrated in the following quote, the social workers do not regard domestic violence as a parenting issue but as a couple issue. He’s angry due to the complaints, she believes that he’s violent and there is the baby! So, in your head of professional, you must know that you need to separate the marital situation from the parenting. This’s the mediation that we had done! Because as a couple you can suck, we don’t care, these’re your affairs, but as parents you can be wonderful! (Social worker 8) It’s necessary to overlook the past, the partners’ relationship, and focus only on parenthood. (Social worker 4)
Blaming the victim
According to family system theory, which is central in the training of social workers in Italy, the responsibility for what happens in the family is shared between its members. This theoretical approach is problematic and potentially dangerous in cases of domestic violence because it blames the victims and shift the responsibility away from the perpetrators (Romito, 2008). In the following quote, the social worker provided a justification for the father’s abuse of his child because he had been drunk and had otherwise appeared to be a “kind man.” In contrast, the child was blamed and was labeled as “difficult.” In addition, although the woman had experienced domestic violence and had decided to report her ex-husband and to leave him in order to protect her child, she had been blamed and considered in part responsible for the child’s problems. Thus, the responsibility for this situation had been shared between the two parents, and mediation had been initiated: He seems a kind man but it seems that he had alcohol abuse and that he had abused his child, a child with problems, then, you never know if these children have some basic problems or have problems because they lived in family situations like…and then she claims that he beat their child when he was drunk, when they were separated. So, the Court gave permission to the father to meet his child but this child doesn’t want to see him…and this child escaped, hid, because he’s uncomfortable with two parents like these! Then, with these parents, I have done a mediation. (Social worker 8) During a mediation meeting, he threatened to kill my cat and the social worker remained unmoved, as if it was a normal thing! I said, “have you realized what he said?” But when he started to threaten them too, saying that if something happens to his children when they’re with the professionals, he denounces and beheads everybody, that was the only time when they had expressed a little fear, but they didn’t report these facts. “Maybe he is a bit nervous,” so he was always justified. (Anna)
Unequal mediation
The recourse to mediation in domestic violence cases, which are characterized by unequal power relations, is contradictory with the principle of equality between the parties. In this regard, the data revealed instances where forcing victims to be present in a room and to discuss with their perpetrators had created unsafe situations for women: At the end of one mediation meeting, I went to pick up my car and he railed against me and threw objects at me! I said “I don’t come here anymore,” because he is dangerous, and put me back again in a dangerous situation. (Carla) The summary of the mediators was 90% his talking, 10% me. (Paola) Mediator didn’t want to meet me alone but both, so at the meetings we are together…. My ex-husband started to say that I am a fascist, that I criticize everything, he began just saying…lies about me…and he talked all the time and the social worker nodded! She allowed him to talk all the time! (Elisa) I looked at myself because I said “maybe I’m the problem,” I saw full congeniality for him…. I told about the violence, his alcohol abuse, but the social worker considered these things poison that I put on him. Finally, I was the evil and he the poor victim. It was terrible. (Lena) Mediation has caused damages to me because this mediator is dangerous. My lawyer told me to be careful, to never speak bad of the father, not to tell anything of what I suffered, not to say anything because it’s better! (Laura)
Mediation at the Service of Violent Fathers
Research evidence shows that when a mother talks about the violences she has experienced, the father is more likely to be granted sole custody of their children (e.g., Silberg et al., 2013). Our research results suggest that the violent men had suffered no ill effects in the mediation process, as the fathers’ role had been viewed as inalienable even when the men had been violent toward their children.
In this quote from a Court document, the father–child relationship was supported even when it was recognized that the father had sexually abused his daughter. In contrast, the mother, who had reported her ex-husband’s actions and had escaped for 6 months in a shelter with their children, had been accused of being not sufficiently protective. The daughter has been exposed, by the father, too often and too early to excessively erotic contents that resulted for her in a significant trauma. The mother wasn’t sufficiently protective, because she didn’t prevent this exposure. So, the intervention program aimed at encouraging the resumption of father–child relationships. (Marta) Family mediation is an excellent instrument for working on parenthood and safeguarding the father figure. (Social worker 8) The social worker told me to hide to the children what their father did, because you have to reconnect the father to the children and the children to the father, because it’s right (…) But, beyond the fact that he robbed, he also did psychological damage, because he put his hand between the legs of ours daughter, it’s a serious matter! And why you want to obliged this creature to see her father? I said to the social workers “if a man did me what he did to my daughter, I wouldn’t want to see him and if he is my father, even less!” And they said “but he’s still the father,” “yes, he is the father but he raped his daughter!” (Marta)
The Consequences of Mediation for Women and Children
Overall, the results showed that the concealment of past violence and the perpetration of violence during mediation caused survivors to be less able to negotiate for safe and satisfactory custody arrangements: He said “I want that the kids sleep with me,” the social worker said that it was fine and then for the judge obviously it was fine, if Services said ok…. And the children live badly…they don’t want to go…(Anna) Mediation turned out very badly for me, children are tossed…social workers said “you need to do the exact calculation of the hours you spend together and see that it’s an equal thing,” an equal thing? But the kids don’t know their father! (Elisa) a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent (Gardner, 1985, p. 61). Firstly they gave the change of placement (from mother to father) and then the sole custody to the father…the motivation was PAS and the fact that I didn’t want to do the family mediation with this mediator, because one who writes to me those things…. (Giada) The social worker told me “You are suffering from PAS.” I said “I’m an idiot, but you know that PAS was invented by a psychiatrist for excusing child abuse?” When I told this, she said “Be careful, that PAS exists and I certify it to you.” I started crying, I was devastate…. Finally she didn’t write it explicitly in the final report, but she wrote that I manipulate my daughter(…) This mediator has canceled me psychologically, fortunately I have a strong character, so I reacted but if I stopped there it was really the end! (Lena) “The mediation was shocking, because we’re both present to discuss, I was exhausting…. I couldn’t take it anymore, 18 meetings…” “What’s the outcome?” “None. We continued with the proceedings and we’re still discussing.” (Sveva) When in the families there’re violences, in these cases attempt mediation at all costs means to violate people’s dignity, remove the chances of protection, legitimize the persecutor and falsify a reconciliation process that doesn’t exist! (Lawyer 1)
Discussion
Despite more than four decades of scholarship in the field of domestic violence, professionals have only recently focused on separation and the postseparation context. Research evidence reveals high rates of postseparation violence (Coordinated Action Against Domestic Abuse, 2012) and demonstrates that abusive men are likely to use severe and even lethal violence in this context to reassert their control over their ex-partners (Campbell et al., 2003; Saunders, 2004). Those men can also use Court proceedings and social services practices to make their ex-partners’ lives more complicated and unsafe (Silberg et al., 2013).
This study explored the role of family mediation in the management of child custody in domestic violence cases. Although the article draws on research conducted in Italy, the significant themes that emerged in this study have been noted in, and are relevant to, many other countries. Overall, the results depicted a general picture where men’s violence toward women and children was hidden, through different tactics of concealment (Bandura et al., 1996; Romito, 2008). Professionals failed to identify and name domestic violence, and labeled it as conflicts, which is consistent with the results of other international studies in this area (e.g., Araji & Bosek, 2010; Rivera, Sullivan, et al., 2012; Rivera, Zeoli, et al., 2012; Saunders et al., 2015). The “parental couple” was dissociated from the “marital couple,” and mediation was therefore applied as a rule, ignoring the violence and assuming that it is not a parenting issue. The discrepancy in the treatment of abused mothers and violent fathers in mediation outcomes was central in our and international findings (e.g., Hardesty & Ganong, 2006; Rivera, Sullivan, et al., 2012; Rivera, Zeoli, et al., 2012). During mediation, the responsibility for the violence and its consequences was attributed to both parents. Women and children were blamed for the perpetrators’ actions and experienced secondary victimization as the perpetrators’ patterns of power and control continued. In this context, abused women were perceived as “engaging in parental alienation” and domestic violence disappeared even more (e.g., Saunders & Oglesby, 2016). Even when father’s violence was clearly documented, his presence was considered essential for children wellbeing and never put into discussion (Harrison, 2008). “Best interests” considerations prioritize the maintenance of perpetrator/child relationships, and this means that priority was given to “abuser’s rights” over victim safety (Jeffries, 2016). As a result, victims of domestic violence were greatly disadvantages during mediation, and this process resulted in decisions that put them and their children at risk for further abuse (Johnson et al., 2005). In addition, professionals did not know nor apply Istanbul Convention, which states that family mediation should be banned in cases of domestic violence.
This study represented the first one in Italy on family mediation in domestic violence cases. It provided multiple perspectives as the “main actors” involved (separated women with children and with a history of domestic violence, lawyers, and social workers) were interviewed; legal documents were also analyzed. While the results of a qualitative research cannot be generalized, this study draws upon a diversified sample: Different sources were used, and women and professionals came from different regions of Northern Italy. This strategy is essential to increase both the transferability and, through “triangulation,” the validity of the results (Babbie, 2010). A limit of this study is that it involves a convenience sample. It means that we interviewed people that are more motivated in sharing their experiences than other people. Especially concerning women, they were all assisted by an antiviolence center: They might have followed a different path from women who did not attend a center. Another possible limit of the study is that we did not interview the separated fathers. We took this decision for two reasons: First, violent men hardly accept to be interviewed (except when they are convicted; Dussy, 2013). Secondly, Istanbul Convention establishes that domestic violence is “gender-based violence”: In a situation of child custody in a violent context, it is valid to consider primarily women’s narration, supported by objective documents.
Conclusion
The results presented in this article revealed a widespread application of tactics of concealment of domestic violence (Bandura et al., 1996; Romito, 2008) and highlighted the need to address these tactics in order to make men’s violence against women and children more visible. In particular, legal and social services did not address factors that are relevant to the best interests of the child, as the Convention on the Rights of the Child (1990) would oblige: Domestic violence was neither assessed nor taken into consideration in family mediation.
What could be done to improve this situation in Italy? The Istanbul Convention is a powerful instrument to develop and support changes. It is said that professionals have the responsibility to become informed about dynamics of domestic abuse, to work with mothers to create and implement plans to improve their and their children’s lives, and to consider perpetrators accountable for their violent acts. Until now, in Italy, professionals did not have mandatory and systematic trainings on domestic violence, it’s urgent to develop and implement trainings on these topics. Comprehensive assessment and differentiated intervention strategies are needed to custody cases involving any allegations of domestic violence (Jaffe et al., 2003). Guidelines with the systematic approach to child custody decision-making in the context of domestic abuse could help practitioners (e.g., see Davis, 2015). Policies and procedures should reflect the complexity of domestic violence cases, hold the perpetrators responsible for the violence, and support the victims. Naming the problem forces the professionals to address the issues and to develop practices that ensure women’s and children’s safety.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
