Hello! I am continuing my literature review today for my summer course, “Family Violence: Cross-Cultural Perspectives.” Today’s article examines cases in which victims of domestic violence have lost custody of their children for failing to protect them from being exposed to violence in the home. You may read the full article here.
Harris, L. J. (2010). Failure to Protect from Exposure to Domestic Violence in Private Custody Contests. Family Law Quarterly, 44(2), 169-195.
Child custody arrangements in the United States have evolved a great deal over the past fifty years. Prior to the 1970s, a joint custody arrangement was not an option for most families. In most cases, the custody of the children would have been awarded to the primary caregiver, who was often the mother. In the late 1970s, with the advent of the father’s rights movement, many states began to enact laws allowing divorcing parents to share legal custody of their children. With these changes in place, it wasn’t long before family courts were faced with the necessity of determining whether a joint custody arrangement was in the best interests of children in cases that involved domestic violence.
As of early 2010, only twenty-two states had enacted laws dictating that legal custody should not be awarded to the violent parent. While the other twenty-eight states and the District of Columbia have enacted laws presuming that battering is a major factor to be considered when determining legal custody, there is little consistency in how the courts determine what is in the best interests of the child in these cases. (Harris, 2010: 2-3).
Many states vary on their definitions of domestic violence. Some states, like New Hampshire, require that the perpetrator’s actions fit strictly defined criminal statutes. Others, such as Arizona, more loosely define domestic violence as any act that would permit the victim to obtain an order of protection. Additionally, some states require that the victim provide absolute proof that abuse has occurred before it may be considered in a child custody dispute.
Furthermore, some states will accept the existence of an order of protection as evidence of intimate partner violence, while in others, the order of protection is not even admissible in court. Finally, some states do not require proof that the child witnessed the violence in order to determine that the child is adversely affected by it while others do require proof that the child was adversely affected by the existence of domestic violence in the home.
Unfortunately, some states now allow the existence of domestic violence as a reason to withhold custody from the battered parent, citing her inability to protect the children from the effects of living in a violent household as a factor when determining who should be awarded custody of the children (Harris, 2010: 3-4). This typically applies in a case where the mother enters into an abusive relationship with a man who is not the child’s father: the father then uses the abuse to gain custody. While this may be necessary in some cases, the author of this article cites instances in which the relationship with the father was also abusive, which then led to the children being removed from the battered mother and custody awarded to her first abusive partner.
In the 1990s, juvenile courts also began to hold victims of domestic violence responsible for not extricating their children from violent households. Increasing numbers of juveniles were removed from their battered mothers and sent to foster homes as a result. Critics argued that this practice unfairly punished battered women for being victims of domestic violence without holding the batterer accountable for his actions. This also led to a substantial decrease of DV victims seeking help in leaving their violent partners out of fear of losing their children.
Fortunately, by the end of the 1990s, this trend shifted toward offering services to the victim rather than punishing her for being a victim. However, the damage had already been done. Many victims of intimate partner violence still hesitate to address the violence in custody disputes for fear that they may lose their children because they allowed the children to be exposed to the violence for far too long.
The article goes on to examine this problem from several different angles. However, I am limiting my focus today to those areas that apply to the paper I am writing. Please read the article to learn more about this important issue.
One of the things that struck me while reading this article is how scary it is knowing just how much control the court system has over determining whether and how much access a parent has to his or her own children. While removing a child from an abusive situation is laudable, the courts often base their decisions on the scant evidence that is deemed as admissible in any given situation.
For example, if a battered mother was intimidated into agreeing to joint custody during an initial divorce agreement, she may not be allowed to bring up the intimate partner violence in subsequent hearings. This often leads to battered women suffering years of abuse-via-court-system from the battering ex-husband. More research is needed in this area to determine the best methods for encouraging battered women to address the abuse in initial court proceedings in order to remove the children from the battering parent as early as possible and minimize the impact that the violence has on them long-term.