Protecting New York's Children: An Argument for the Creation of a Rebuttable Presumption against Awarding a Spouse Abuser Custody of a Child

By Kurtz, Lynne R. | Albany Law Review, Summer 1997 | Go to article overview

Protecting New York's Children: An Argument for the Creation of a Rebuttable Presumption against Awarding a Spouse Abuser Custody of a Child


Kurtz, Lynne R., Albany Law Review


Introduction(1)

Domestic violence is the leading cause of injury to women between the ages of nineteen and forty-four.(2) In the United States, a woman is beaten every fifteen seconds.(3) When a mother is battered, it affects more than the intended victim. Recent studies show that children also suffer when their mothers are abused, regardless of whether they witness the abuse.(4) Yet, New York's child custody statute does not do enough to protect these innocent victims of spousal abuse. Unfortunately for the children, custody disputes within the New York courts are steadily on the rise.(5)

The New York State Legislature recently passed a bill which explicitly requires judges to consider evidence of domestic violence in child custody determinations.(6) While acting in the best interests of a child is a step in the right direction, it is not enough. The Legislature must create a statutory presumption against awarding a spousal abuser custody of a child. Only then will the best interests of a child truly be met.

Part I of this Comment details the historical statutory treatment of domestic violence and describes the various types of custody statutes.(7) Part II Summarizes the various studies and literature on the effects on a child who witnesses domestic violence.(8) Part III addresses the growing awareness of domestic violence, nationally and then specifically in New York.(9) Part IV analyzes the deficiencies of the current New York custody statute, Domestic Relations Law section 240.(10) Part V then studies the presumption statutes of other states and concludes that such a statute is needed in New York as well.(11)

I. How State Statutes Address Domestic Violence and Custody

A change in the treatment of domestic violence by state legislatures has been very recent.12 As the national awareness of the effects of domestic violence has grown, many state governments have recognized the harmful effects of spousal abuse on children. These states have reacted, through their codes, to attempt to better protect children.

A. History of the Treatment of Domestic Violence and Custody

Issues such as domestic violence have not always been overlooked in child custody determinations as they sometimes are today.(13) Historically, the morality of parents was considered before custody was granted.(14) Spousal abuse was seen as a form of cruelty, and the abuser was not given custody." With the advent of no-fault divorce in the 1970s, the focus shifted away from suspect immoral behaviors of a parent. A married couple was able to divorce without having to prove the other had done the children any wrong.(16) Courts and statutes turned from assessing parental behaviors toward a standard involving the best interests of the child.(17) Under this standard, courts and legislatures are less concerned with the relationship between the parents, especially if there appears to be no physical effect upon the child.(18) Statutes began favoring joint custody, and fathers were permitted a more active role in raising their children.(19) While this may appear to be a fairer standard for some, in reality it does not benefit mothers and children who were abused by their husbands and fathers during the marriage.(20) Research has shown that the abuse tends to escalate after divorce.(21)

After many years, domestic violence is once again reemerging as a factor to be considered in child custody decisions.(22) Today there are custody statutes which address domestic violence in forty-four states and the District of Columbia.(23) This change is due to a growing awareness of domestic violence and the detrimental emotional, as well as physical, effects on its victims.(24)

B. Description of the Custody Statutes

The majority of state child custody statutes use a best interests of the child standard.(25) Under this standard, the court purports to consider what type of custody arrangement would be best for a child in a particular situation. …

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