Academic journal article Duke Journal of Gender Law & Policy

Relocation Law and Survivors of Domestic Violence

Academic journal article Duke Journal of Gender Law & Policy

Relocation Law and Survivors of Domestic Violence

Article excerpt

INTRODUCTION

Imagine that Jane Doe suffered years of physical, emotional, and verbal abuse at the hands of her husband, John Doe. Jane and John have three kids, and Jane wishes to divorce her abusive husband. The one time she mentioned divorcing John and moving out with the kids, Jane suffered severe physical abuse at John's hands. Since then, she has not mentioned divorce and relocation. Every day when she comes home from work, she is verbally and emotionally abused. She fears that John will physically hurt her at any moment if she does or says the wrong thing since he has done so before, so she just keeps quiet. One day after work, John comes home and strikes Jane and their children. At that moment, Jane knows she has to take her children and leave John in order to keep herself and her children safe from harm. Depending on the state she is in, she may or may not be able to leave this situation without informing John of where exactly she is going if she wants to get custody of the children. She may be able to excuse this notice requirement, but if she cannot, she may be charged with child kidnapping. Jane's fate rests in the hands of her state's law on relocation and domestic violence.

While the above fact pattern is not based on a true story, it is a typical situation for many domestic violence survivors, 85% of whom are women. (1) Depending on marital status, prior custody determinations, and applicable state law, survivors may have difficulty fleeing violence with their children without risking their own or their children's safety. Domestic violence survivors may employ the justice system as a tool to help interrupt abusers' cycle of violence and pattern of abuse. (2) When children are involved, however, the justice system may not be a friendly forum for survivors who wish to escape the violence. Many state courts do not allow survivors to simply flee the state with any children without significant legal barriers. (3) In such a situation, the fact that a survivor's assailant often knows her destination frustrates the very purpose of relocating. (4) For those survivors, the court may be a forum for further abuse rather than a safe haven and a source of control and freedom. (5)

Different states have dealt with domestic violence survivors and the laws surrounding their relocation in various ways, with no state implementing a perfect system. (6) The greatest challenges facing survivors wanting to relocate with their children are: (1) whether domestic violence is a factor courts consider when determining custody, and (2) the presence of a mandatory notification provision. This note focuses precisely on these challenges. I will first explore the relationship between domestic violence survivors and the courts, then discuss the relocation laws of Massachusetts, California, Alabama, and Idaho, and finally argue that an amalgamation of the laws of those states is superior to any single state's approach to relocation law as it relates to domestic violence survivors. Other important issues surrounding domestic violence and state relocation laws--for example, the rights of the father or the rights of the potentially falsely accused--are outside the scope of this note.

I. SURVIVORS OF DOMESTIC VIOLENCE AND THE COURTS

The American Bar Association reports that approximately 1.3 million women and 835,000 men are physically assaulted by an intimate partner every year in the United States. (7) Survivors of domestic violence often do not leave their abusers initially, and the reasons they stay in the relationship vary drastically. (8) Some of the most common reasons that survivors remain are lack of resources and information about escape, continuing love and hope that their abusers will change, community pressure, mental health problems, fear of both non-violent and violent retribution, and lack of financial resources resulting in dependence on the abuser. (9) A frequently cited reason that survivors stay in an abusive relationship is economic dependency, (10) and some have argued that if survivors "receive assistance in achieving economic independence, more victims will be able to gain safety. …

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