Fighting for Child Custody When Domestic Violence Is at Issue: Survey of State Laws

Article excerpt

Family law judges deciding child custody cases are often faced with difficult choices. Should a judge award joint custody to Jon and Lisa's father who has remarried a woman the children dislike? Should their mother, who has been the stable force in her children's lives, be the sole arbiter of the schools the children attend and the religious training they receive? Laws have emerged to help judges decide these heart-wrenching questions. In general, states have determined that the "best interests of the child" is the primary standard judges should apply in child custody cases. Although such a broad criterion allows for discretion, it can also invite judicial bias (Mills, 1999b).

One emerging concern in the area of child custody is how to temper judicial bias when domestic violence becomes an issue in a custody dispute. There is ample evidence that judges fail to take the violence seriously and award sole or joint custody to wife beaters (Liss & Stahly, 1993; Pagelow, 1993; Zorza, 1995). Many judges believe that women either exaggerate men's violence or otherwise deliberately alienate their children from their fathers during divorce to gain a custody advantage (Gardner, 1992). Judges also are persuaded that fathers should be integrally involved in their children's lives after the divorce is final--regardless of the father's relationship with the children's mother.

Determining child custody in the context of domestic violence involves resolving an inherent tension between preserving and maintaining parent-child relationships and protecting children from emotional and physical harm. The best interests of the child standard attempts to reconcile this tension by directing judges to determine which parent better protects the child's safety and well-being. The laws are meant to focus on the child, not the parents. Protecting the safety of children as well as their mental and physical health poses a dilemma in cases where domestic violence is present. Judges struggle to decide whether a "battering" or a "victimized" parent can better fulfill the child's needs. Increasingly, judges must decide whether the violence of the father is more significant than the violence of the mother (Levin, 2000).

The literature on child custody and domestic violence suggests that the interests of the parents, not the children, are guiding custody decisions (Levin, 2000). Battered women's advocates argue on behalf of battered mothers that batterers should not be awarded custody of their children (Sun & Thomas, 1987). They rely on the extensive literature that documents the detrimental psychological, emotional, and physical effects on children who witness violence. They argue that awarding custody to batterers perpetuates the intergenerational cycle of violence and further victimizes battered women by putting them in harms way. Fathers' rights advocates, on the other hand, emphasize the fathers' right to custody and rely on the growing literature documenting that children from divorced families benefit from significant involvement with both parents (Federico & Kinscherff, 1996; Peled, 1996).

To explore further the practice implications of child custody determinations in cases involving domestic violence, this article presents national data documenting each state's legislative approach to child custody cases involving domestic violence. We found that 46 of 50 states and Washington, DC, have adopted one of two regulatory schemes for addressing a history of domestic violence when custody is at issue: (1) a rebuttable presumption standard or (2) a factor test approach. The remaining four states do not include considerations of domestic violence in their custody statutes. We frame this discussion in the larger debate between battered women's and father's rights advocates and suggest the limitations of each approach. We call for research in an effort to clarify which legislative approach most focuses on the children's needs and best protects the children and their victimized parent. …

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