Academic journal article The American University Journal of Gender, Social Policy & the Law

Damned If You Do, Damned If You Don't: Why Multi-Court-Involved Battered Mothers Just Can't Win

Academic journal article The American University Journal of Gender, Social Policy & the Law

Damned If You Do, Damned If You Don't: Why Multi-Court-Involved Battered Mothers Just Can't Win

Article excerpt

INTRODUCTION

Being a good mother is difficult. Being a good mother and a victim1 of domestic violence2 is even harder. The different and often competing expectations placed on battered mothers in the juvenile (child welfare),3 civil/trial,4 criminal, and family5 court systems present a profound and befuddling problem. In this Article, I intend to identify the difficulty and uniqueness of being both a mother6 and a victim of domestic violence, investigate the tension and conflict among different judicial systems, and proffer some suggestions for reform.

Battered mothers often find themselves caught between the competing demands of the juvenile, civil, criminal and family court systems. In some states, jurisdiction may be concurrently vested in more than one court- generally, family and district, or district and juvenile. In other states, all courts are independent. And in other states, child welfare proceedings are heard in family court. Regardless of the details, in each state there are several court systems that affect battered mothers. Mothers who are concurrently involved in multiple court systems inevitably experience the differing expectations placed on them by different courts. "Failure to protect" laws are "child-centered," whereas domestic violence laws tend to be "victim-centered." While the intent behind each set of laws is protection, there may be imperfections in the way the laws were drafted and are applied.

Battered mothers are charged with abuse and neglect in the juvenile court at alarmingly high rates.7 Many states prosecute exposure to intimate partner violence as a type of child maltreatment, or "failure to protect."8 Other states prosecute the same charge as a criminal charge in district court or another equivalent lower-level court. Charges are frequently brought against the victim of violence, often the mother and custodial parent, for failing to protect her children from the domestic abuse. In many cases, social workers and the courts place unrealistic expectations on a woman by requiring her to either obtain a protection order preventing contact with her abuser or to make a complete and immediate separation from her abuser. These expectations are potentially impossible for battered mothers to achieve because battered mothers are typically financially dependent on their abusers and lack a community support system. Such financial and support issues are a common effect of a relationship built on control and isolation. These expectations are dangerous and could have lasting and counterintuitive results.

Further, once the battered woman leaves her abuser or obtains a civil protection order9 against the abuser, the abuser is likely to file a family court case for visitation and/or custody. If the abuser is able to obtain such an order, he will be authorized by the court to have contact with his victim through their children, defeating any of her attempts to meet the expectations of the juvenile court. In general, family courts do not take the step of preventing any and all visitation by one of a child's parents.10 While current custody laws across the United States do take into account how domestic violence plays into shared orders of custody, very little is made explicit about contact and visitation.11 Family courts are concerned about alienating one parent from the children and often give parents many chances to stay involved in their children's lives.12 Thus, women who do everything asked of them by child protective services-that is to say, complete separation from their abusers-may then face opposing pressures and judgments in the family court.

Battered mothers who seek civil protection orders in the district court face expectations that are sometimes directly in conflict with those imposed both by the juvenile court in abuse and neglect proceedings and by the family court in custody matters. Battered mothers in civil protection order proceedings may obtain temporary custody of their children on an ex-parte basis. …

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