"[M]other has no lodging, no money and constant oppression. If [she] wants to try for a better life with the two children, the court gives her its blessings. Slavery was abolished 125 years ago and so was oppression. The mother's condition following her divorce has been analogous to that of a slave chained to false accusations, constant allegations and hatred. A human being deserves better." (1)
Domestic violence fuels many of the nation's bitterly contested interstate custody cases. It is an underlying issue in most parental abduction cases, which occur at an estimated rate of 203,900 per year. (2) Despite the role of domestic abuse in interstate custody cases, in the past, legislators enacted jurisdictional laws to prevent forum-shopping and parental abduction without considering their impact on domestic violence survivors. In recent years, jurisdictional laws such as the Parental Kidnapping Prevention Act (3) and the Uniform Child Custody Jurisdiction and Enforcement Act (4) have begun to incorporate safety provisions for victims of domestic violence. Full faith and credit laws, including provisions in the Violence Against Women Act (5) and the Violence Against Women Act of 2000, (6) have been drafted for the primary purpose of protecting victims who flee across state or tribal lines. This article will review the relevant state and federal laws and demonstrate that courts and family law attorneys may apply these jurisdictional statutes with a view to protecting domestic violence survivors (7) and children embroiled in interstate custody cases.
The article begins with an examination of how the United States legal system has historically addressed domestic violence and then discusses the current responses of the criminal and civil justice systems. Part I also provides readers with a contemporary overview of issues related to domestic violence survivors' flight across state lines. These include the dangers of separation violence when victims leave their abusers, the impact of domestic violence on children, and the potential protection that relocation offers many victims.
Part II of the article surveys custody litigation in domestic violence cases, first examining batterers' use of litigation to control victims. Part II also sets forth the procedural vehicles through which custody and visitation orders may be entered. In particular, the article summarizes how orders are issued under domestic relations and protection order statutes.
Part III of the article reviews the jurisdictional statutes that may be involved in such cases, providing specific examples of statutory provisions that could be used to assist domestic violence survivors. These laws include the Uniform Child Custody Jurisdiction Act, (8) the Uniform Child Custody Jurisdiction and Enforcement Act, (9) the Parental Kidnapping Prevention Act, (10) the Violence Against Women Act, (11) the Violence Against Women Act of 2000, (12) the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, (13) and the Indian Child Welfare Act. (14) Because the determination that a particular state or tribe has jurisdiction in a custody case can have tremendous effects on victim safety and on the outcome of the case, these statutes are examined in detail. Part IV of the article then uses a hypothetical fact pattern to demonstrate how these jurisdictional laws may be applied in practice to safeguard victims.
Part V of the article concludes that courts and family law attorneys currently do not utilize these laws in ways that protect domestic violence survivors. Furthermore, it recommends that training on jurisdictional laws and education designed to correct misconceptions about domestic violence could lead to necessary cultural change. Such efforts would increase the application of jurisdictional laws to preserve the fundamental rights of domestic violence survivors.
A. Historical Perspective
Domestic violence has been defined in various ways in the legal, social science, and psychology fields. …