The legal system's response to children exposed to domestic violence

Future of Children

Volumn 9, Issue 3, 1999, Pages 67-83

  Lemon, Nancy K D ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CHILD; CHILD CARE; CHILD WELFARE; COURT; FAMILY VIOLENCE; GOVERNMENT; HEALTH CARE POLICY; HEALTH PROGRAM; HUMAN; LAW ENFORCEMENT; REVIEW; UNITED STATES;

EID: 0033506772     PISSN: 10548289     EISSN: None     Source Type: Journal    
DOI: 10.2307/1602782     Document Type: Review

References (105)

1. See, for example, the words of a Mississippi court: "Family broils and dissensions cannot be investigated before the tribunals of the country, without casting a shade over the character of those who are unfortunately engaged in the controversy. . . . [L] et the husband be permitted to exercise the right of moderate chastisement . . . without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned." Bradley v. State, 2 Miss. (Walker) 156 (1824).
2. Hoctor, M. Domestic violence as a crime against the state. California Law Review (1997) 85:643-700.
3. Hart, B. The legal road to freedom. In Battering and family therapy: A feminist perspective. M. Hansen and M. Harway, eds. Thousand Oaks, CA: Sage Publications, 1993.
4. These include poor communication between court personnel and victims, and gender bias in judges' decision making. See, for example, Solender, E.K. Report on miscommunication problems between the family courts and domestic violence victims. Women's Rights Law Reporter (1998) 19:155-60; Czapanskiy, K. Domestic violence, the family, and the lawyering process: Lessons from studies on gender bias in the courts. Family Law Quarterly (1993) 27:247-74.
5. These include poor communication between court personnel and victims, and gender bias in judges' decision making. See, for example, Solender, E.K. Report on miscommunication problems between the family courts and domestic violence victims. Women's Rights Law Reporter (1998) 19:155-60; Czapanskiy, K. Domestic violence, the family, and the lawyering process: Lessons from studies on gender bias in the courts. Family Law Quarterly (1993) 27:247-74.
6. For example, in 1995, Dallas, Texas, police received 23,972 domestic violence calls, which included 20,528 offenses, resulting in 7,535 arrests. See note no. 4, Solender. In 1993, California law enforcement received 238,895 domestic violence calls, 38,000 more than in 1990. See Policy Council on Violence Prevention. Violence prevention: A vision of hope. Sacramento, CA: Crime Prevention Center, Office of the Attorney General, 1995.
7. Browne, S.M. Due process and equal protection challenges to the inadequate response of the police in domestic violence situations. California Law Review (1995) 65:1295-1334.
8. One national study found that 20% of contested child custody cases involved domestic violence. See National Center for State Courts. Domestic violence and child custody disputes: A resource handbook for judges and court managers. Williamsburg, VA: NCSC, 1997. A 1996 California study found that 62% of the state's contested custody cases involved allegations of domestic violence. The Uniform Statistical Reporting System generated these data, which can be obtained by contacting Susan Hanks at the California Statewide Office of Family Court Services, (415) 865-7639. A state survey of restraining order applications in Massachusetts found that in 1994, some 43,000 children had witnessed domestic violence; 65% of these children were ages eight or younger. See Groves, B. Children without refuge: Young witnesses to domestic violence. Zero to Three (April/May 1996) 16:29-34.
9. One national study found that 20% of contested child custody cases involved domestic violence. See National Center for State Courts. Domestic violence and child custody disputes: A resource handbook for judges and court managers. Williamsburg, VA: NCSC, 1997. A 1996 California study found that 62% of the state's contested custody cases involved allegations of domestic violence. The Uniform Statistical Reporting System generated these data, which can be obtained by contacting Susan Hanks at the California Statewide Office of Family Court Services, (415) 865-7639. A state survey of restraining order applications in Massachusetts found that in 1994, some 43,000 children had witnessed domestic violence; 65% of these children were ages eight or younger. See Groves, B. Children without refuge: Young witnesses to domestic violence. Zero to Three (April/May 1996) 16:29-34.
10. In this article, the term witnessing domestic violence is used interchangeably with being exposed to domestic violence, or living in a home where such abuse is occurring, as children are deeply affected whether or not they are actually physically present when the specific incidents of domestic violence occur.
11. Reported appellate tort suits involving children who have witnessed domestic violence are rare, which is not surprising, given that it is unusual for adult victims of domestic violence to be involved in tort suits, and also that most such suits settle before trial. However, there are a few recent appellate cases in this area. See Waliser v. Tada, Ohio App. LEXIS 825 (1990); see also Larson v. Dunn, 460 N.W.2d 39 (Minn. 1990); and Courtney v. Courtney, 413 S.E.2d 418 (W. Va. 1991).
12. The cases discussed here were obtained primarily through queries in LEXIS-NEXIS, one of the two leading legal databases. The initial query resulted in several hundred cases, which were screened for those that actually involved children's issues and adult domestic violence. Only cases decided by an appellate court since 1990 were included, except as indicated.
13. Mason, M.A., and Quirk, A. Are mothers losing custody? Read my lips: Trends in judicial decision making in custody disputes - 1920, 1960, 1990, and 1995. Family Law Quarterly (1997) 31:215-36.
14. However, some legal journals, such as the New York Law Journal, publish a few local trial court decisions.
15. Many cases are not appealed due to lack of resources. For example, because attorneys' fees for appellate civil cases can be extremely high, and access to low-cost attorneys can be very limited, many cases are not brought to the attention of the appellate courts. See note no. 11, Mason and Quirk, pp. 221-22.
16. See, for example, the Michigan Child Custody Act of 1970, Mich. Comp. Laws § 722.23, Mich. Stat. Ann. § 25.312 (1995).
17. National Council of Juvenile and Family Court Judges. Family violence in child custody statutes: An analysis of state codes and legal practice. Family Law Quarterly (1995) 29:197-225; Kurtz, L.R. Protecting New York's children: An argument for the creation of a rebuttable presumption against awarding a spouse abuser custody of a child. Albany Law Review (1997) 60:1345-75.
18. National Council of Juvenile and Family Court Judges. Family violence in child custody statutes: An analysis of state codes and legal practice. Family Law Quarterly (1995) 29:197-225; Kurtz, L.R. Protecting New York's children: An argument for the creation of a rebuttable presumption against awarding a spouse abuser custody of a child. Albany Law Review (1997) 60:1345-75.
19. See, for example, In re Custody of Vaughn, 664 N.E.2d 434 (Mass. 1996), in which the trial court's decision was reversed because it had not provided written findings of fact regarding domestic violence.
20. See, for example, Farrell v. Farrell, 819 P.2d 896 (Alaska 1991), in which the mother was given legal and physical custody because the court viewed the presence of domestic violence as indicative of the inability of the two parents to share decision making in a joint-custody situation. See also Brainerd v. Brainerd, 523 N.W.2d 611 (Iowa 1994), in which the court determined that Iowa law permits courts to consider domestic violence when evidence is presented of harm to the child.
21. Telesco v. Telesco, 1996 Westlaw 634288 (Ct. Super. 1996), unreported.
22. Hilliard v. Peroni, 666 N.Y.S.2d 92 (1997).
23. These include Alabama, Delaware, Florida, Hawaii, Idaho, Iowa, Louisiana, Minnesota, Nevada, North Dakota, Oklahoma, Texas, and Wisconsin. See note no. 15, National Council of Juvenile and Family Court Judges. These presumptions are recommended by the American Bar Association (ABA) and the American Psychological Association (APA). See Davidson, H. The impact of domestic violence on children. Washington, DC: American Bar Association, 1994; see also American Psychological Association. Violence and the family. Washington, DC: APA Presidential Task Force on Violence and the Family, 1996.
24. These include Alabama, Delaware, Florida, Hawaii, Idaho, Iowa, Louisiana, Minnesota, Nevada, North Dakota, Oklahoma, Texas, and Wisconsin. See note no. 15, National Council of Juvenile and Family Court Judges. These presumptions are recommended by the American Bar Association (ABA) and the American Psychological Association (APA). See Davidson, H. The impact of domestic violence on children. Washington, DC: American Bar Association, 1994; see also American Psychological Association. Violence and the family. Washington, DC: APA Presidential Task Force on Violence and the Family, 1996.
25. See, for example, Bruner v. Jaeger, 534 N.W.2d 825 (N.D. 1995), in which the appellate court reversed the trial court's order giving custody to the batterer father, and sent the case back to the trial court to be decided based on the statutory presumption against custody to a batterer. See also McDermott v. McDermott, 946 P.2d 177 (Nev. 1997), in which the court found on appeal that the trial court had abused its discretion by failing to consider a presumption against perpetrators of domestic violence.
26. See, for example, Okla. Stat. Ann. tit. 10, § 21.1(D) (West 1995), requiring clear and convincing evidence of abuse, rather than mere preponderance of the evidence.
27. See note no. 15, National Council of Juvenile and Family Court Judges, p. 201.
28. Ford v. Ford, 700 So. 2d 191 (Fla. 1997).
29. Minn. Stat. § 518.17(1) (a) (13) (1998); see also Cal. Fam. Code § 3020 (1999).
30. See, for example, Van Horn v. Van Horn, 1996 Ohio App. LEXIS 5751 (1996). Unpublished.
31. See, for example, Kahn v. Kahn, 654 N.Y.S.2d 34 (1997), in which the trial court's decision to award unsupervised visitation to the father was reversed, because of his violence toward the mother and because he had relocated outside the United States, making abduction of the child a strong possibility.
32. See, for example, McCauley v. McCauley, 678 N.E.2d 1290 (Ind. 1997), in which the court held that the mother could not use the fact that the father had been violent to her before the divorce, to modify the visitation order from supervised visitation to no visitation at all.
33. See, generally, Bowermaster, J. Relocation custody disputes involving domestic violence. University of Kansas Law Review (1998) 46:433-63; Coker, D. Domestic violence and move-away issues. In Domestic violence law. N.K.D. Lemon, ed. Bethesda, MD: Austin and Winfield, 1996.
34. See, generally, Bowermaster, J. Relocation custody disputes involving domestic violence. University of Kansas Law Review (1998) 46:433-63; Coker, D. Domestic violence and move-away issues. In Domestic violence law. N.K.D. Lemon, ed. Bethesda, MD: Austin and Winfield, 1996.
35. Carter v. Carter, 940 S.W.2d 12 (Mo. 1997); Jacoby v. Carter, 563 N.Y.S.2d 344 (1990).
36. See note no. 29, Bowermaster.
37. For a comprehensive overview of restraining order statutes and cases throughout the United States, see Klein, C.F., and Orloff, L.E. Providing legal protection for battered women: An analysis of state statutes and case law. Hofstra Law Review (1993) 21:801-1189.
38. See, for example, Cal. Fam. Code §§ 6200 et seq. (1993), the Domestic Violence Prevention Act, which provides for many different types of relief through restraining orders.
39. Seufert v. Seufert, 693 A.2d 86 (N.H. 1997); D.M.H. v. Thompson, 577 N.W.2d 643 (Iowa 1998).
40. Edleson, J.L. The overlap between child maltreatment and woman battering. Violence Against Women (February 1999) 5:134-54.
41. Smith v. State, 927 P.2d 14 (Nev. 1996).
42. People v. Lemons, 562 N.W.2d 447 (Mich. 1997); Commonwealth v. Lazarovich, 574 N.E.2d 340 (Mass. 1991).
43. See, generally, Haddix, A. Unseen victims: Acknowledging the effects of domestic violence on children through statutory termination of parental rights. California Law Review (1996) 84:757-815; Enos, V.P. Prosecuting battered mothers: State laws' failure to protect battered women and abused children. Harvard Women's Law Journal (1996) 19:229-68; Becker, M.E. Double binds facing mothers in abusive families: Social support systems, custody outcomes and liabilities for acts of others. University of Chicago Law School Roundtable (1995) 2:13-33; Davidson, H. Child abuse and domestic violence: Legal connections and controversies. Family Law Quarterly (1995) 29:357-73.
44. See, generally, Haddix, A. Unseen victims: Acknowledging the effects of domestic violence on children through statutory termination of parental rights. California Law Review (1996) 84:757-815; Enos, V.P. Prosecuting battered mothers: State laws' failure to protect battered women and abused children. Harvard Women's Law Journal (1996) 19:229-68; Becker, M.E. Double binds facing mothers in abusive families: Social support systems, custody outcomes and liabilities for acts of others. University of Chicago Law School Roundtable (1995) 2:13-33; Davidson, H. Child abuse and domestic violence: Legal connections and controversies. Family Law Quarterly (1995) 29:357-73.
45. See, generally, Haddix, A. Unseen victims: Acknowledging the effects of domestic violence on children through statutory termination of parental rights. California Law Review (1996) 84:757-815; Enos, V.P. Prosecuting battered mothers: State laws' failure to protect battered women and abused children. Harvard Women's Law Journal (1996) 19:229-68; Becker, M.E. Double binds facing mothers in abusive families: Social support systems, custody outcomes and liabilities for acts of others. University of Chicago Law School Roundtable (1995) 2:13-33; Davidson, H. Child abuse and domestic violence: Legal connections and controversies. Family Law Quarterly (1995) 29:357-73.
46. See, generally, Haddix, A. Unseen victims: Acknowledging the effects of domestic violence on children through statutory termination of parental rights. California Law Review (1996) 84:757-815; Enos, V.P. Prosecuting battered mothers: State laws' failure to protect battered women and abused children. Harvard Women's Law Journal (1996) 19:229-68; Becker, M.E. Double binds facing mothers in abusive families: Social support systems, custody outcomes and liabilities for acts of others. University of Chicago Law School Roundtable (1995) 2:13-33; Davidson, H. Child abuse and domestic violence: Legal connections and controversies. Family Law Quarterly (1995) 29:357-73.
47. In re L.B., 530 N.W.2d 465 (Iowa 1995).
48. In re Nina A.M., 593 N.Y.S.2d 89 (1993).
49. In re Appeal in Maricopa County, Juv. Action No. JD-6123, 956 P.2d 511 (Ariz. 1997); In re Sylvia R., 55 Cal. App. 4th 559 (1997).
50. In re L.G., 864 P.2d 1301 (Okla. 1993).
51. In re Mark V., 177 Cal. App. 3d 754 (1986); In re H.L.T., 298 S.E.2d 33 (Ga. App. 1982).
52. In re Hannibal Abdullah, 423 N.E.2d 915 (Ill. 1981); In re C.M.J., 663 N.E.2d 498 (Ill. App. 1996); In re Adoption of John Doe, 657 P.2d 134 (N.M. 1982); State ex rel. Children, Youth, and Families Dept. v. Joe R., 945 P.2d 76 (N.M. 1997); In re Adoption of M.J.H., 501 A.2d 648 (Pa. Super. 1985); Nancy Viola R. v. Randolph W., 356 S.E.2d 464 (W. Va. 1987); In re Sara R., 945 P.2d 76 (N.M. 1997).
53. See note no. 43, In re Mark V; and note no. 44, In re Adoption of John Doe.
54. See note no. 44, In re Adoption of John Doe and In re Hannibal Abdullah; note no. 43, In re H.L.T.; and In re Lutgen, 532 N.E.2d 976 (Ill. App. 1988).
55. See note no. 44, In re Adoption of John Doe and In re Adoption of M.J.H. But see also Bartasavich v. Mitchell, 471 A.2d 833 (Pa. Super. 1984), in which the court held that the father's incarceration and the fact that the murder had been a stabbing were not sufficient to terminate parental rights.
56. See note no. 44, In re Sara R.
57. See note no. 43, In re Mark V.
58. See note no. 46, In re Lutgen.
59. See note no. 43, In re H.L.T. and In re Mark V; note no. 44, Nancy Viola R. v. Randolph W.; and note no. 46, In re Lutgen.
60. Leonard, E. Convicted survivors: The imprisonment of battered women who kill. Unpublished doctoral dissertation, University of California, Riverside, 1997.
61. R.H. v. B.F., 653 N.E.2d 195 (Mass. App. 1995); In re Marriage of C.M.C. and D.W.C., 940 P.2d 669 (Wash. App. 1997); Ford v. Ford, 700 So. 2d 191 (Fla. 1997); and Michelli v. Michelli, 655 So. 2d 1342 (La. 1995).
62. Ricker v. Ricker, 691 A.2d 283 (Md. App. 1997); and Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996).
63. Even in states in which courts are required to include written findings regarding domestic violence, these findings may not include any statement about the effect of the domestic violence on the children.
64. See note no. 15, National Council of Juvenile and Family Court Judges.
65. Lemon, N.K.D. Domestic violence and children: Resolving custody and visitation disputes. San Francisco: Family Violence Prevention Fund, 1995; see also Keilitz, S.L. Domestic violence and child custody disputes: A resource handbook for judges and court managers. Williamsburg, VA: National Center for State Courts, 1997.
66. Lemon, N.K.D. Domestic violence and children: Resolving custody and visitation disputes. San Francisco: Family Violence Prevention Fund, 1995; see also Keilitz, S.L. Domestic violence and child custody disputes: A resource handbook for judges and court managers. Williamsburg, VA: National Center for State Courts, 1997.
67. Telephone conversation with Maureen Kiehm, a court-based domestic violence specialist, Honolulu, HI, June 15, 1998.
68. Telephone conversation with Judge Susan B. Carbon, Family Court, Plymouth, NH, June 15, 1998.
69. Cal. Fam. Code § 3111, and Cal. WeIf. and Inst. Code § 16206 (West 1998).
70. See Cal. Fam. Code §§ 1815, 1816 (West 1998).
71. Telephone conversation with Judge Mike Town, Honolulu, HI, June 15, 1998; telephone conversation with Judge Cindy Lederman, Miami, FL, June 16, 1998; see also the comments by Judge Peter Meeka, Municipal Court Judge of Rio Hondo, CA, in Making a difference: Domestic violence and the role of the court. A video produced by the Judicial Council of California, 1998. This video is available to judges by contacting Bobbie Welling, California Center for Judicial Education and Research, (415) 865-7822.
72. Annual report: Spouse and child abuse special account. Unpublished report prepared for the legislature. 1997. Report available by contacting Maureen Kiehm, program specialist, Office of the Director, Family Court of the First Circuit of Hawaii, (808) 539-4406.
73. These include Louisiana, Maine, Minnesota, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, and Washington. See note no. 57, Lemon, p. 133.
74. See note no. 20, American Psychological Association, p. 100; see also Fischer, K., Vidmar, N., and Ellis, R. The culture of battering and the role of mediation in domestic violence cases. Southern Methodist University Law Review (1993) 46:2117-74; Goldner, V. Making room for both/and. The Family Therapy Networker (March/April 1992) 16:54-61.
75. See note no. 20, American Psychological Association, p. 100; see also Fischer, K., Vidmar, N., and Ellis, R. The culture of battering and the role of mediation in domestic violence cases. Southern Methodist University Law Review (1993) 46:2117-74; Goldner, V. Making room for both/and. The Family Therapy Networker (March/April 1992) 16:54-61.
76. National Council of Juvenile and Family Court Judges. Model Code on Domestic and Family Violence. Reno, NV: NCJFCJ, 1994. See §§ 407, 408A, and 408B.
77. Pearson, J. Mediating when domestic violence is a factor: Policies and practices in court-based divorce mediation programs. Mediation Quarterly (1997) 14:319-35.
78. See, generally, Page, R. Family courts: An effective judicial approach to the resolution of family disputes. Juvenile and Family Court Journal (1993) 44:3-60.
79. See note no. 62, Town.
80. San Francisco, Butte, and Yolo Counties.
81. See note no. 62, Lederman; see also Daigle, L.E. Empowering women to protect: Improving intervention with victims of domestic violence in cases of child abuse and neglect; a study of Travis County, Texas. Texas Journal of Women and Law (1998) 7:287-317.
82. Telephone conversations with Dr. Gregory Lecklitner, then director of the program, June 17, 1998; and Sherry Aaron, social worker/domestic violence advocate for the program, October 19, 1998.
83. E-mail correspondence with Dr. Neena Malik, current director of the program, October 20-21, 1998.
84. Telephone conversations with Judge Leonard Edwards, San Jose, CA; and Joe Yomtov, director of Santa Clara County's Victim/Witness Assistance Program, June 11, 1998.
85. See note no. 62, Lederman.
86. E-mail correspondence with Deborah Epstein, Georgetown University Law Center, Washington, DC, June 1, 1998.
87. See, generally, Bessenyey, I.M. Visitation in the domestic violence context: Problems and recommendations. Vermont Law Review (1989) 14:57-78; Straus, R.B., and Alda, E. Supervised child access: The evolution of a social service. Family and Conciliation Courts Review (1994) 32:230-46; Straus, R.B. Supervised visitation and family violence. Family Law Quarterly (1995) 29:229-52.
88. See, generally, Bessenyey, I.M. Visitation in the domestic violence context: Problems and recommendations. Vermont Law Review (1989) 14:57-78; Straus, R.B., and Alda, E. Supervised child access: The evolution of a social service. Family and Conciliation Courts Review (1994) 32:230-46; Straus, R.B. Supervised visitation and family violence. Family Law Quarterly (1995) 29:229-52.
89. See, generally, Bessenyey, I.M. Visitation in the domestic violence context: Problems and recommendations. Vermont Law Review (1989) 14:57-78; Straus, R.B., and Alda, E. Supervised child access: The evolution of a social service. Family and Conciliation Courts Review (1994) 32:230-46; Straus, R.B. Supervised visitation and family violence. Family Law Quarterly (1995) 29:229-52.
90. Expedited visitation service. Produced by the Superior Court of Maricopa County, AZ. Video describes a court program that includes supervised visitation. To obtain the video, contact Kat Cooper, program director, (602) 506-5714.
91. See note no. 58, Kiehm; and note no. 63, Annual report.
92. For example, Family Court Services of Los Angeles and Contra Costa Counties provide trainings so that family members and others can be visitation supervisors.
93. See note no. 2, Hoctor; and note no. 6, Browne. See also Zorza, J. The criminal law of misdemeanor domestic violence, 1970-1990. Journal of Criminal Law and Criminology (1992) 83:46-72.
94. International Association of Chiefs of Police. Family violence in America: Breaking the cycle for children who witness. IACP summit report. Unpublished. Available by contacting the IACP in Alexandria, VA, (800) 843-4227.
95. Telephone conversation with Sgt. Sue Payne, San Diego Police Department, June 16, 1998. See also the Redding Police Department training video. Domestic violence through the eyes of a child. Redding, CA. Available by contacting Sgt. Dan Kupsky, (530) 225-4200; and training materials produced by Tucker, Buel, and Associates, available from the National Training Center on Domestic Violence in Austin, TX, (512) 407-9020.
96. See note no. 83, Redding Police Department.
97. The video, RealLove, is available from the Santa Cniz County Sheriff's Department, Santa Cruz, CA, (831) 471-1121.
98. See, for example, standard reporting forms for Berkeley, CA, available by contacting Officer Bill Judis of the Berkeley Police Department, (510) 644-6848.
99. Telephone conversation with Lt. Gary Johnson, commander, Family Violence Center, San Jose Police Department, CA, June 17, 1998.
100. See promotional materials from Polaroid Corporation regarding documentation of domestic violence cases. Available through Polaroid's Web site at http://www.polaroid.com.
101. National Council of Juvenile and Family Court Judges. Family violence: Emerging programs for battered mothers and their children. Reno, NV: NCJFCJ, 1998, pp. 15-19.
102. Telephone conversation with Donna Amoroso, deputy chief, San Jose Police Department, CA, June 17, 1998.
103. Telephone conversation with Shawn Smith, child advocate, Next Door Solutions to Violence, San Jose, CA, June 18, 1998.
104. See note no. 89, National Council of Juvenile and Family Court Judges, pp. 118-23.
105. See, for example, Cal. Penal Code § 1203.097 (1994) mandating a minimum of 52 weeks of counseling, in a group setting with other batterers of the same gender, for at least two hours each week, by certified treatment providers.