The Access & Visitation Program and Domestic Violence

The Access & Visitation Program and Domestic Violence:

Concerns of Victim Advocates and
Recommendations for Change
Informational Paper Presented to the House Ways and Means Committee
Prepared by Support Network of Advocates for Protective Parents.
Tuesday, May 10th 2016
Legislative Background
The legislation that formalized the Access and Visitation (AV) Grant Program was
the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA), which sought to reduce the financial burdens on states of supporting
the poor, most specifically, single mothers on welfare. The legislation is best
known for replacing Aid to Families with Dependent Children (AFDC) with
Temporary Assistance to Needy Families (TANF), which required welfare
recipients to seek work. However, another component of the legislation was
designed to further reduce the burden on states by strengthening efforts to
secure child support payments from the fathers of children of single mothers who
would otherwise be receiving welfare payments. Motivating these fathers to take
responsibility for their children and avoiding punitive measures against them
were the foundations of the Responsible Fatherhood Initiative, a key component
of which was the AV Grant Program.
Thus, section 391 of PRWORA added a provision to award funds annually
to states to establish and administer programs to support and facilitate
noncustodial parents' (fathers or mothers) access to, and visitation of, their
children by means of activities including mediation (both voluntary and
mandatory), counseling, education, development of parenting plans, visitation
enforcement (including monitoring, supervision and neutral drop-off and pickup),
and development of guidelines for visitation and alternative custody
arrangements. States could administer programs directly or through contracts or
grants with courts, local public agencies, or private nonprofit entities.
Since 1997, Congress has appropriated $10 million each year for the AV
program. By law, states are required to match the federal contribution with a
minimum of 10% of state funds. While allotments are made to each state based
on the number of children living with one biological parent, each state is assured
of an allotment of at least $100,000. States have been permitted to supplement
the AV allotment with other federal funds such as leftover TANF money.
In 2013, the program reportedly served 104,674 people - up from 69,000 in
2003.1 Those served included noncustodial fathers (36%), custodial mothers
(34%), noncustodial mothers (15%), custodial fathers (11%), and others,
including grandparents and legal guardians (4%). The most common service
provided was education (41%), followed by mediation (34%), parenting planning
(18%), counseling (5%), supervised visitation (9%), neutral drop off and pick up
(2%), and visitation monitoring (1%). A majority of the clients had never married

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(55%). The programs success is measured in terms of increased parenting time

for the noncustodial parent, which was reported for 64% of noncustodial fathers
and 47% of noncustodial mothers. (This difference is statistically significant, and
its implications will be discussed below.)
How the AV program originally addressed domestic violence (DV)
Even before the AV program went into effect, DV advocates were concerned
about its lack of protection for victims of DV, and they made their voices heard,
but to no avail. On March 31, 1998, a Notice of Proposed Rulemaking was
published in the Federal Register regarding the AV Grant Program. Public
comments were formally requested. The final rule for the program was published
in the Federal Register on March 30, 1999, and included public comments on the
legislation and the agencys responses to those comments. Regarding comments
about DV, OCSE Commissioner David Gray Ross expressed concern for victims,
but declined to address safety requirements in a systematic way, and left this
entirely up to the States.
The AV Program did not only decline to provide guidance to the states on
DV safeguards. In fact, it actively promoted the idea that DV and child sexual
abuse were not factors that should be considered relevant in promoting fathers
access to children, and should be ignored. A guidance memo to grantees, in
existence since 1999, instructed AV counselors to ignore DV. This memo
instructed counselors to not focus on DV, batterer intervention, anger
management or substance abuse issues. Counselors were also instructed that if
they provide counseling for children, they must demonstrate how that counseling
increases access and should not focus on sexual abuse or various reasons
why that child may have been removed from their parents custody. According to
the memo, the AV program would not pay for counseling on such topics. It would
only pay for counseling that leads to increased access for the noncustodial
parents. [Authors note: While it is understandable that AV funding might not
cover certain types of services, the memo gave the impression that DV, child
sexual abuse and substance abuse were not serious issues requiring attention.
Recently, however, the author brought this memo to the attention of OCSE
officials, and to their credit, they rescinded it.]
Other AV program elements that pose risks for DV survivors
In addition to the guidance memo that minimized the seriousness of DV, several
reports describing the operation of the AV Program mention principles and/or
practices that could be detrimental to DV survivors. These include the following:

Conflating violence and conflict. A series of reports on the AV program

include numerous references to dealing with high conflict families
including those in which physical violence takes place. There are even
passing references to domestic violence, but there is no indication
anywhere that the programs understand the dynamics of DV or have

The Access & Visitation Program and Domestic Violence

strategies to protect victims. Yet research has shown that at least 50% of
high conflict divorces or failed mediation cases involve DV.2-3

Psycho-education used to treat DV. One AV report describes services

for high conflict families in California, Colorado, Idaho, and Utah. 4 These
include a brief investigation by trained court personnel when parents
exhibit high conflict behavior, and multi-session psycho-educational
interventions for parents for whom DV has been an issue, with the
objective of helping them parent apart and understand the dynamics of
DV. For example, the report states that Colorado developed a 12-week
curriculum for never-married, separated, or divorced parents where DV
has been an issue.5 Such an approach assumes that DV is about
relationship dysfunction, which can be addressed through educating both
parties about how to get along with each other. The failure of such
education to lead to an agreement could then be attributed to the victims
refusal to cooperate.

Using AV services as a cheap form of custody evaluation. Many

mediation programs funded with AV money are located in the courts, and
this allows them to use resources provided by the court including
mediators, administrative personnel, and facilities, thus stretching the AV
program resources. The disturbing aspect of AV mediation is that when
couples fail to reach an agreement, many AV programs may require the
mediator or some other court official to make a written recommendation to
the court regarding custody/visitation, and this may become an
enforceable court order. In South Carolina, for example, failed mediation
may result in the mediator assisting the noncustodial parent in filing a pro
se petition or submitting a recommendation to the court which could
become a court order if the custodial parent fails to comply.6 Mediation
failure is most likely to occur in high conflict or DV cases, and this is
particularly concerning when mediation services target DV or high
conflict populations, which occurs in eight states (Colorado, Idaho,
Oregon, Utah, West Virginia, Wisconsin and Wyoming).7 A ninth State,
Connecticut, provides mediation services targeting correctional
populations, which may pose serious safety issues for the custodial parent
and the child as well as the community.8 Other services provided by some
AV programs have a similar function to custody evaluations at a fraction of
the cost. For example, Idaho offers this service through an Alternative
Dispute Resolution Screening process, while Colorado offers it through a
Special Advocate Program.9 Both programs serve investigatory purposes,
gathering information about families where there have been allegations of
misconduct, and making recommendations to the court. In the Idaho
Program, screeners may recommend one or more services that include a
domestic violence evaluation or substance abuse evaluation or
supervised visitation services that may be beneficial to victims of DV.
In Colorado, the Special Advocate performs the same function. 10 However,

The Access & Visitation Program and Domestic Violence

there is no requirement that those conducting the initial investigation have

training and expertise in detecting DV.

Providing legal representation without regard to the criminal history

or history of violence. Of far greater concern is the fact that the program
provides litigation support services to noncustodial fathers, without regard
to whether or not they may be DV offenders or pose a risk to their
children. AV programs provide litigation support for noncustodial parents
seeking custody in a variety of ways. These include assistance with prose filing, payment of court fees, mediation that results in recommendations
to the court about custody/visitation, and actual legal representation. This
means that the program may be providing batterers, child molesters and
rapists with a variety of legal services to assist them in obtaining
custody/visitation, while providing their victims with nothing. Two
examples of dangerous criminals who have received legal representation
through the AV program are provided in the appendix. They include John
Allen Mohammed, the Beltway Sniper, who murdered 10 people in 2001,
and Joshua Komisarjevsy, who raped and murdered a mother and her two
daughters in Connecticut in 2007 (see Appendix A).

Proposed changes to family violence safeguards in the AV Program

In September 2014, Congress enacted the Preventing Sex Trafficking and
Strengthening Families Act (Public Law 113-183), which included a Sense of
Congress Provision (Section 303) that encourages states to incorporate parenting
time with strong family violence safeguards in all new child support orders. In
response to these developments, OCSE asked the Center for Policy Research to
update a Research Brief, analyzing current practices in family violence safeguards
in the AV program, and identifying next steps that need to be included in parenting
time orders. The report found that family violence safeguards in the AV program
are few and inadequate. Only one program in Genesee County, MI actively
screened for DV, and that program would not serve families where there was a
history or indication of DV. Even supervised visitation, which may seem like a
reasonable solution to the problem of victim safety, may be inadequate since
these services are in short supply, and are unavailable in many jurisdictions. 11 In
addition, judges often use supervised visitation as a way to introduce an offending
parent into a child's life, gradually building towards unsupervised visitation
including overnight visits.12 There is no evidence that this approach prevents
recurrence of violence in the case of DV, and it is totally inappropriate in case of
child sexual abuse.
OCSE is currently considering a series of recommendations for improving
family violence safeguards in the AV Program. These include:

Requiring programs to develop partnerships and collaborations with DV

agencies.

The Access & Visitation Program and Domestic Violence

Requiring programs to screen participants for DV, and to provide

opportunities for disclosing DV throughout the program.
Developing protocols for handling DV once it is disclosed including a
system for referring clients to DV services, and establishing guidelines on
how DV will affect eligibility for the program.
Educating clients about DV and promoting safe parenting.

Caveats to consider in proposed changes

Custody crisis in state courts. An important consideration for federal agencies
involved in funding access services for noncustodial parents is to be aware of the
custody crisis facing battered women in state family courts. There is an
extensive literature showing the frequency with which accused and adjudicated
batterers are awarded primary or joint custody of their children (see Appendix B.)
The Leadership Council on Child Abuse and Interpersonal Violence has
estimated that 58,000 children are forced into unsafe custody arrangements
annually in the United States and that half a million children will be affected at
any point of time (see Appendix C). Many of these children will suffer physical
and psychological damage, which may never heal. While child custody is a
states issue, the federal government may contribute to this problem by funding
programs that increase the likelihood of such unsafe custody arrangements.
Core beliefs about DV. The reasons for this crisis have been discussed
elsewhere, and a detailed explanation is beyond the scope of this report.
However, one key factor that is relevant to the AV and other fatherhood programs
is a set of core beliefs about DV that is the main determinant of decision-making
in DV cases. These core beliefs establish a frame of reference that varies widely
among DV professionals (including judges and custody evaluators) and that is
largely resistant to training.
Evidence of these core beliefs comes from two landmark studies funded
by the National Institute of Justice (USDOJ). The first study involved a national
survey of 1,187 professionals who deal with child custody determination,
including 465 custody evaluators.13 The researchers identified a certain core set
of beliefs about DV that were highly correlated with one another. These included
the belief that women make false allegations of DV, that survivors make false
allegations of child physical and sexual abuse, that DV is not important in
custody decisions, that survivors alienate their children from the other parent,
and that children are hurt when survivors are reluctant to co-parent. Evaluators
actual recommendations of conditions that favored the offender over the victim
were significantly related to these core beliefs, as well as to a more general set of
beliefs supporting patriarchal norms and discrimination against women.
The second study, also funded by NIJ, conducted in-depth examinations
of 69 actual custody evaluations and found that strong safeguards for victims in
the custody assessment were predicted by the custody evaluators knowledge of
DV and construction of DV as an issue of power and control. The authors note
that the severity of the physical, emotional, and social abuse in the couples

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history did not predict the safety of the parenting plan. This finding confirmed the
observation of the studys facilitators, that some evaluators and courts do not
view a few incidents of physical abuse, no matter how severe, as constituting DV.
Some evaluators view such incidents as merely situational, driven by conflict
between the parents, stress, or provocation by the victim. 14
Thus, in directing grantees to collaborate with DV agencies or experts,
and to come up with definitions of DV and methods of evaluating DV, federal
agencies must be aware that not all experts, definitions, and methods of
evaluation are equal. Core beliefs among experts and trainers could drastically
affect custody outcomes and safety issues for survivors and their children.
Parental Alienation. One common manifestation of core beliefs that are
detrimental to DV survivors is a theory known as Parental Alienation. Although
widely regarded as junk science by the scientific community, and ineligible for
insurance reimbursement, numerous studies have shown that Parental Alienation
is frequently used in family court to discredit victims of violence and justify
awarding custody or unsupervised access to alleged abusers (see Appendix D).
There is some evidence that the AV program has based some of its services on
this theory. For example, AV contracts obtained from certain grantees in the
State of Texas listed Parental Alienation as one of the acceptable services
allowed by the AV program, and claimed that that Parental Alienation was in fact
endorsed by the enabling federal legislation. When the author brought these
contracts to the attention of OSCE officials, the language was removed. OCSE
acknowledged that the contracts had misquoted federal legislation. Yet these
contracts had been in existence for years. How many other contracts are out
there that misquote federal legislation? It is therefore important for OCSE to
clarify for AV grantees that Parental Alienation and similar theories are not
endorsed by the federal enabling legislation and that the federal government will
not fund services or referrals to services by providers guided by Parental
Alienation Theory.
Another reference to Parental Alienation was found in reference to an
Arizona program in which parents who fail to comply with court-ordered visitation
may be required to attend a four-hour class dealing with parental alienation 15.
However, this class is also referred to as a Parent Conflict Resolution Class,
which according to the report is offered in several jurisdictions and may also
simply be referred to as parent education. In fact parent education is the most
commonly offered service accounting for 41% of all AV services according to the
2013 report.16 The Arizona program was viewed as a necessary intervention,
because judges needed to know that mothers were being educated before they
put them in jail for contempt [authors emphasis].17 It is therefore possible that
many Parental Conflict Resolution programs and many parent education
programs offered by the AV program are also based on Parental Alienation theory.
Even AV grants that do not specifically mention Parental Alienation as one
of their services may still be providing such services to children or adult survivors
in the form of reunification counseling parent education or parent conflict
resolution, or other interventions based on Parental Alienation theory. Such

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theories may also find their way into reports by mediators and other professionals
in their role as custody evaluator, when they make recommendations to the court
about custody and visitation in DV cases, as we discussed above.
Battered noncustodial mothers. Related to the caveats discussed above is
another critical issue that needs to be addressed by the AV program. Because
the focus has been on fathers, the AV program has yet to develop an approach to
helping noncustodial mothers who are paying child support yet have no access to
their children. Many of these mothers have lost custody and even visitation after
making allegations of DV and/or child maltreatment. These allegations were often
not investigated, and were defined as Parental Alienation. Even AV programs
that are proactive in addressing DV in other respects are silent on the subject of
helping battered noncustodial mothers with access issues.
For example, the Texas Office of the Attorney General, which administers
the Texas AV program, focuses on establishing strong DV safeguards to ensure
that DV victims can safely establish child support and parenting time orders. The
OAG website, for example, provides information on DV and on how victims can
obtain child support safely. The website also provides information to victims of DV
who have lost custody to their abusers. The following frequently asked question
appears on the website:
Question: What happens if the person I am afraid of has custody of the children?
Answer: Even though you are a victim of family violence, if the other person
applies for services, the OAG may establish an order requiring you to pay child
support or enforce an existing order. To keep your address confidential, be sure to
read the question, Is the information I give the OAG confidential? Noncustodial
parents who believe it would be harmful or dangerous for the other parent to know
their address should ask the OAG about the Affidavit of Nondisclosure and how to
keep addresses confidential.
Apparently, it is so common in Texas for victims of DV to lose custody to
their abusers, that the ongoing threat to their safety through disclosure of their
addresses has resulted in a frequently asked question on the OAG website. Yet
there is no evidence that Texas, or any other state, uses AV funds to address the
unique challenges facing noncustodial battered mothers. In fact, as we noted
above, the 2013 AV report indicates that AV services for noncustodial mothers are
significantly less successful that those for noncustodial fathers.
Guiding philosophy. All federal fatherhood programs are predicated on the
uncritical assumption that fathers are always good for children. Reports on these
programs only cite literature that supports this assumption, while other literature
showing that some types of fathers have a negative effect on children is ignored.
The effects on children of being exposed to violence and abuse are not given
adequate consideration, despite mounting evidence of the lifelong deleterious
health effects of such exposure. Mothers are viewed primarily as potential barriers
to fathers (gatekeepers) and not as having positive parenting value in their own
right. Their role as primary caregivers and protectors is never (or rarely)

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mentioned. If fatherhood initiatives are truly concerned about the best interests of
children, their philosophy must be re-evaluated.

NOTES:
1. Office of Child Support Enforcement, Administration for Children and Families, U.S.
Department of Health and Human Services. Access and Visitation Grant Program: FY
2013 Update.
2. Janet R. Johnston, High Conflict Divorce, The Future of Children, 4. No.1 (1994) p. 168
3. Dennis P. Saccuzzo, Nancy Johnson et al. Mandatory Custody Mediation: Empirical
Evidence of Increased Risk for Domestic Violence Victims and Their Children. NIJ Grant
No. 1999-WT-VX-0015, NCJ Report No. 195422, April 2003
4. Jessica Pearson & David Price, Access and Visitation Programs: Promising Practices.
Department of Health and Human Services, Administration for Children and Families,
Office of Child Support Enforcement, 2004, p. ii.
5. Ibid, p. 25
6. Ibid, p. 59.
7. Ibid, Exhibit A-2.
8. Ibid, p.
9. Ibid, p.
10. Ibid, p. 28.
11. Jessica Pearson, Child Support, Parenting Time, and Safety Concerns. Research Brief,
Center for Policy Research. August 2015, p. 8.
12. Ibid, p. 5.
13. Daniel G. Saunders et al., Final Report: Child Custody Evaluators' Beliefs About
Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background,
Domestic Violence Knowledge and Custody Recommendations. NIJ Grant No. 2007WG-BX-0013, available at: www.ncjrs.gov/pdffiles1/nij/grants/238891.pdf
14. Michael S. Davis, Chris S. O'Sullivan, et al., Custody Evaluation When There Are
Allegations of Domestic Violence: Practices, Beliefs, and Recommendations of Custody
Evaluators. NIJ Grant No. 2007-WG-BX-0001. NCJ No. 234465
15. See Note 4 Supra, p. 56.
16. See Note 4 Supra
17. Ibid, p. 64
Recommendations for further reading:
Leora N. Rosen. Beyond the Hostage Child: Towards Empowering Protective Parents.
CreateSpace Independent Publishing Platform, August 21, 2014
Doreen Ludwig. Motherless America: Confronting Welfares Fatherhood Custody Program.
CreateSpace Independent Publishing Platform, September 1, 2015.