Crisis In The Family Courts

CHILD WITNESSING OF DOMESTIC VIOLENCE

Posted in Uncategorized by abatteredmother on April 14, 2011
by Naomi Cahn

What happens to children when they see violence between their parents? Is there any impact on children when they see their mother or father with bruises inflicted by a partner? Discussions of family violence frequently distinguish between neglect or violence directed at children and violence directed at adults while children are present. Violence against children is legally considered either child abuse or child neglect. Witnessing violence directed at adults has generally not been treated as harmful to children.

Historically, courts deciding custody and visitation questions were inclined to dismiss the idea that witnessing partner abuse resulted in any relevant impact on children (Cahn, 1991). There is increasing sociological and psychological research that documents the detrimental effects on children of exposure to violence, regardless of the child’s own direct victimization. The existence of violence in the family, even when not directed toward children, shapes children’s behavior both in the short- and long term. Between 10 and 20% of all children are at risk for exposure to domestic violence (National Clearinghouse, 2003), and estimates are that 3.3 to 10 million children are exposed to domestic violence in their homes annually (Bernard, 2003). For many children, this exposure results in behavioral, emotional, and psychological problems.

Courts in virtually all states now consider domestic violence in custody decision making, and this can even result in a rebut-table presumption against giving custody to the batterer. Similarly, in domestic violence proceedings for civil protection orders, courts may impose protections for children who have been exposed to domestic violence, and may also allow these children to bring such proceedings themselves (Lemon, 1999). Child exposure to domestic violence is also important in child protection proceedings. As part of a plan to keep the child safe, the mother’s relationship with her batterer may be important. Mothers may also be held accountable for failing to protect their children who have been exposed to domestic violence (Dunlap, 2004). Other legal actions to which child exposure may also be relevant include tort suits based on domestic violence exposure and criminal sentencing.

This chapter discusses the sociological and psychological studies showing the impact on children of exposure to domestic violence, describes some of the available treatment options, and reviews the legal system’s approach to these issues. A total of 85% (or almost 600,000 victimizations) of all domestic violence each year occurs against women, and the remaining 15% occurs against men (Rennison, 2003). Thus, although this chapter will generally refer to male batterers and female victims, it is important to note that children also witness battering by same-sex partners and by women against men.

Based on this analysis, there are four principles that should guide legal approaches to child exposure. First, child witnessing of domestic violence must be a critical component of any legal proceeding that affects children. Second, the adult victims of domestic violence should be supported, not penalized, in their continuing relationship with their children. Third, the safety of the adult victim and the child should be of paramount importance. Finally, the batterer’s exposure of children to domestic violence should be a consideration in other legal proceedings relating to the batterer.

IMPACT ON CHILDREN: GENERAL THEMES

Although they may be the third parties within a battering relationship between intimate partners, children are victims. Even when they are not themselves the target of the abuse, children are affected cognitively, emotionally, and physically by their parents’ violence. Children can be exposed to domestic violence in several different ways (Fantuzzo & Mohr, 1999). They may actually witness or hear the abuse. “Hiding in their bedrooms out of fear, the children may hear repeated threats of injury, verbal assaults on their mother’s character, objects hurled across the room, suicide attempts, beatings, and threats to kill” (Field, 1998, p. 3). They may also be involved in the immediate aftermath of the violence by, for example, dialing 911, talking to the police, or visiting their parent in the hospital (Fantuzzo & Mohr, 1999). And they may be exposed to more long-term consequences of the violence through seeing the bruises on their mother or seeing her crying and depressed. One recent study found that more than 80% of battered mothers believed that their children overheard the abuse, and more than 75% reported that their children saw evidence of the abuse (Edleson, Mbilinyi, Beeman, & Hagemeister, 2003).

While research on the effect of domestic violence on children is still comparatively new, three major themes have emerged from the data. First, the existence of domestic violence in a family often translates into a direct risk of physical harm for children (Lyon, this volume, Chap. 2). The children of fathers who are abusive to their partners are 30 to 60% more likely to be physically abused as well. It is still not clear whether abused mothers are more likely to be physically abusive toward their children than are non-abused mothers (National Clearinghouse, 2003; Stark, 2002). Child witnessing and direct child victimization are strongly interconnected (Huth-Bocks, Levendosky, & Semel, 2001). One researcher has described the co-occurrence of witnessing domestic violence and being a victim of child maltreatment as the “double whammy” for children (Edleson et al, 2003).

Second, apart from possible physical abuse, children who witness abuse are at risk for severe behavioral and other psychological problems. Studies carried out over the last 25 years consistently agree that child witnesses to violence are at a higher risk for a wide range of behavioral, emotional, and intellectual problems than are children who have not been exposed to violence (Huth-Bocks et al., 2001). In fact, child witnesses of domestic violence suffer from some of the same consequences as do children who are direct victims of child maltreatment (Bernard, 2003). The effects of exposure to domestic violence may continue into adulthood (Edleson, 2004), although not all children experience such long-term effects.

Seeing one parent attack another may traumatize children in a variety of ways, ranging from interference with the parent-child bond to destroying a child’s sense of security. Because children learn behaviors from their parents, they may ultimately imitate the abuser’s actions toward the victim-parent or resort to violence in their own relationships. Studies that compare children of battering relationships who have not themselves been subject to abuse to children who have neither witnessed nor been subject to abuse, find that the children of the battering relationship show more aggression, exhibit impaired cognitive and motor abilities, and are delayed in verbal development. Other studies, as discussed below, further confirm that parental violence has negative behavioral and emotional effects on children who witness it.

Third, not all children who witness domestic violence will exhibit these problems nor be subject to direct physical abuse (Bernard, 2003; Stiles, 2002). Some children exposed to domestic violence show no greater problems than those who have not been exposed (Edleson, 2004). Some children who are exposed to violence face no greater risks than children who live in “distressed” relationships without abuse (Stark, 2002). A number of factors may influence the degree to which child witnesses are affected. They include: the age of the child witness, gender, intellectual ability, socioeconomic status, level of social support, the quality of the child’s relationship with the parents, and the amount of time that has passed since the child’s exposure to violence (Stiles, 2002). For example, younger children are more vulnerable to effects from exposure (National Clearinghouse, 2003). A good relationship with the child’s victim-parent or another trusted person can help the child to handle the trauma (Bernard, 2003).

Direct abuse of the child also significantly affects a child’s resilience. Children who are direct victims of domestic violence appear to experience the most severe effects (Bernard, 2003; Huth-Bocks et al, 2001). The most careful studies indicate that abused children who also witness domestic violence exhibit the most problematic behavior, while witnessing alone leads to “moderate” problems (Judicial Council of California, 2003). Unfortunately, however, many studies fail to distinguish between witnessing domestic violence and direct victimization of the child. While child abuse in the general population is present in only an estimated 6% of families, child abuse occurs in approximately 40% of families where partner abuse has occurred (Judicial Council of California, 2003).

SPECIFIC EFFECTS ON CHILDREN

This section provides an overview of the available data, and develops the themes articulated above concerning the impact on children of witnessing partner abuse.

Psychological Impact

On a psychological level, child witnesses tend to exhibit higher levels of anxiety and depression than do children who have not witnessed violence (Edleson, 1999; Stiles, 2002). Feelings of fear, anger, grief, shame, distrust, and powerlessness are among the host of emotional reactions that child witnesses may suffer (Bernard, 2003). Given these reactions, not surprisingly child witnesses also have a higher risk of suicide (Bernard, 2003). Some research has found that adolescent witnesses “are more likely to have a fatalistic view of the future resulting in an increased rate of risk taking and antisocial behavior, such as school truancy, early sexual activity, substance abuse, and delinquency” (Stiles, 2002, p. 12).

Behavioral Impact

Children’s behavior may be impacted in many ways when they are exposed to domestic violence.

School Performance

Many children’s school performance suffers following exposure to domestic violence. Poor performance in school appears to have at least three aspects. First, there is some evidence that child witnesses have poorer intellectual functioning than non-witnesses, coupled with an increased risk of learning difficulties (Miller et al., 1989, as cited in Bernard, 2003). Second, witnesses tend to have obedience problems and are at higher risk of lying and cheating (Stiles, 2002). Finally, these children may develop social problems, manifesting in an inability to develop relationships with others (Stiles, 2002).

Aggressiveness

Aggressiveness is one of the most widely discussed behaviors exhibited by children who have witnessed domestic violence. It is important to remember that not every child that is exposed to domestic violence will respond with aggressive behaviors and that many additional factors play a role in affecting an individual child’s response. Nevertheless, child witnesses are more likely to respond to conflict in an aggressive manner (Bernard, 2003; Edleson, 1999; Stiles, 2002). This aggressiveness results in an increased risk of fighting and bullying (Stiles, 2002). In addition to aggression, child witnesses may exhibit more anger and temperament problems than non-witnessing children (Edleson, 1999). Child witnesses exhibit both signs of aggression and signs of fearfulness and inhibition. In a carefully controlled study of 167 children in Seattle, Washington, the authors found that children exposed to domestic violence were 1.6 times more likely than other children to score in the borderline area of disturbance to the more clinically disturbed range for externalizing behaviors, such as aggressiveness. The authors found little differences in social competence or internalizing behaviors, such as depression (Kernic et al., 2003).

Some research suggests child witnesses are also more likely to end up in juvenile court. Child witnesses become involved in the justice system, not only for violent crimes, but also for sexual crimes and involvement with drugs and alcohol. Some studies have found that a child’s exposure to violence within the home was significant in predicting the child’s behavior outside of the home, and that child witnesses were more likely to try to commit suicide, abuse both alcohol and drugs, and engage in other delinquent acts (Edleson, 2004; National Resource Center on Domestic Violence, 2002).

Child witnesses come to view violence as an acceptable way to resolve problems. Even more frightening, some child witnesses accept violence as part of a normal relationship. These attitudes can lead to child witnesses growing up to be abusers or victims of abuse. Boys are significantly more likely to approve of violence than girls (Edleson, 1999).

Relationship With Each Parent and Siblings

The existence of domestic violence in the home may result in the “children’s paradox”: children may feel loyal to one or both of their parents, and yet be fearful because of the existence of the violence (Wolfe, 2002). Children who have been exposed to domestic violence are more likely to be disobedient at home, and adolescent witnesses have higher rates of interpersonal problems with other family members, especially interparental conflict (Stiles, 2002).

Battered women seem to share many of the same beliefs about parenting styles and behaviors with non-battered women (Judicial Council of California, 2003). One study found that the existence of domestic violence in the family did not negatively affect the intellectual quality of the home environment for preschoolers, although maternal depression, which is linked to domestic violence, did predict a less intellectually stimulating home environment (Huth-Bocksetal, 2001).

Long-Term Effects

In addition to these immediate effects, children who witness domestic violence may also suffer from troubling long-term effects. Some scholars have suggested that child witnesses, males in particular, are likely to become abusers in their own relationships. While daughters may be less likely than sons to become involved in a violent relationship as an adult, women who have been exposed to domestic violence as children are more likely to tolerate abuse when they do experience it (Wolfe, 2002). In addition, emotional problems such as depression may carry through to adulthood. A study in 1995 of undergraduate students indicated that witnessing violence as a child was associated with adult depression and trauma-related symptoms for both men and women, and with low self-esteem for women (Bancroft & Silverman, 2002, as cited in Judicial Council of California, 2003). Thus, for children who live with a batterer, the continuing violence reinforces the lesson that violence is acceptable and puts them at risk for becoming abusers themselves.

Risks From Continuing Contact With the Batterer

Given the potential damage to children who witness domestic violence, significant questions arise as to whether children should continue to have contact with the batterer. Perpetrators pose risks to children even if the children are no longer living with them. These risks include the obvious ones of neglectful or abusive parenting or exposure to additional domestic violence in the perpetrator’s new relationship. In addition, perpetrators may undermine the mother’s parenting and use the child as a pawn against the mother by trying to discover the mother’s location or using visits as occasions for further violence against her (American Bar Association, 2004).

TREATMENT OPTIONS

Because of the growing awareness in the mental health community that exposure of children to domestic violence constitutes a widespread public health concern, more post-treatment programs now serve child witnesses. Courts, social workers, shelters, and community-based organizations have begun to develop programs responding to children. These interventions focus on providing services to children, to their primary caretakers, and to the batterers. Children may participate in individual counseling or group programs that provide social support to help children feel less isolated (Judicial Council of California, 2003). There are a variety of different interventions, ranging from programs that are offered to target specific behaviors, such as reducing aggression, to programs focused on young children, offered by shelters or within the community; there also may be mentors or group therapy available. (Graham-Bermann, 2001).

Programs generally focus on helping children to deal with the trauma of witnessing violence as well as helping them to mend relationships with other family members (Bancroft & Silverman, 2002). Boston Medical Center has established a counseling, advocacy, and outreach program focusing on children who have witnessed violence both in their community and in their homes. The staff includes social workers, psychologists, an attorney, and both a child psychiatrist and a pediatrician. Counseling is provided on both a group and individual basis, with a focus on group interventions (Child Witness to Violence Project, 2004). The University of California Medical Center in San Francisco also has implemented a program to identify exposed children and to provide a parent-child treatment intervention (Violence Prevention Project, 2000).

There has, unfortunately, been comparatively little research on therapeutic models and approaches for children exposed to domestic violence (Groves, 1999, p. 127). Studies do show that children who have participated in group treatment or treatment that is focused on mother-child interactions experience a reduction in aggressive and depressive behaviors, as well as other positive outcomes, although these studies are limited in nature (Judicial Council of California, 2003, p. 21).

Programs that focus on battered women also aid battered children (Bancroft & Silverman, 2002). Battered parents have often had their parenting undermined by the batterer: the batterer’s behavior may teach children not to respect their mother and the battering itself may affect their mother’s parenting abilities (Bancroft & Silverman, 2002). Many battered women’s shelters provide programs and support groups as well as parenting classes to help battered women break the cycle of violence and aid them in their own parenting skills (Judicial Council of California, 2003). The majority of these programs consist of group therapy that meets weekly, on average for four to eight weeks. In order to improve her parenting, the battered mother needs to feel safe.

Batterer programs are the primary option for the perpetrators. Some states require perpetrators to attend these programs. California requires that the perpetrator of domestic violence attend a 52-week batterer program that includes discussing the effects of abuse on children (Cal. Penal Code, § 1203.97, 2004). The program often consists of education about violence and the personal attitudes and beliefs that support abusive behavior in the home, and may include therapy (Emerge, 2003). Although many traditional programs have not focused on the effect of violence on children in their home, increasing numbers of batterer programs are stressing the importance of parenting and the effect of violence on the family in their curricula (Judicial Council of California, 2003). While some studies have questioned whether batterer programs reduce recidivism, a recent study of 633 batterers in three programs found that in the 15-month follow-up period, batterers who completed a full program were one-third less likely to reassault their partners than batterers who exited the programs early (Jones, D’Agostino, Gondolf, & Heckert, 2004).

LEGAL APPROACHES TO CHILD EXPOSURE TO DOMESTIC VIOLENCE

In child custody and visitation proceedings, witnessing is relevant to the initial custody determination, restrictions on visitation, and the appropriateness of joint custody (Matthews, 1999). Child exposure may also be a factor considered in child abuse and neglect proceedings, in tort suits, and in criminal actions.

Custody and Visitation

In most families today, the mother is still the primary caretaker of the children. However, a battered mother often can be manipulated into relinquishing custody when the parents separate. Given the consequences of domestic violence for children, abuse of the mother should be an important factor in determining custody and visitation arrangements. Domestic violence can explain a strained relationship between the abuser and the children, it can explain a mother’s parenting, and it can support a judge’s decision to protect the children and the victim from further abuse. Even after separation from the mother, many abusers continue their harassment and violence against her, and may abuse the children directly in order to punish the mother (Meier, 2003).

Custody

In deciding between parents, virtually all states now have statutes suggesting or requiring that courts consider domestic violence as one factor in a custody award (Lemon, 1999). States have enacted other statutes recognizing the interrelationship between domestic violence and custody determinations. The custody-oriented legislation can be divided into three categories. First, some statutes require courts to consider domestic violence before joint or sole custody is awarded. For example, the Indiana statute directs that the court consider a series of factors in deciding on child custody, including “[e]vidence of a pattern of domestic or family violence by either parent” (Ind. Code Ann. § 31–17-2–8 (7), 2004). Second, some statutes create a presumption against awarding custody to a batterer. For example, Massachusetts provides the following:

A probate and family court’s finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. (Mass. Ann. Laws ch. 208 § 31A, 2004)

A third set of statutes direct that domestic violence be taken into account when making other decisions, such as determining whether a parent has abandoned her, or his, children by fleeing domestic violence, or (as discussed below) requiring that visitation arrangements take into account the violence. For example, Rhode Island’s custody statute provides that a court can condition visitation or custody on a domestic violence perpetrator’s completion of a batterer’s program and also requires that if there has been a finding of domestic violence, the court must “consider as primary the safety and well-being of the child and the parent who is the victim of domestic violence” (RI Gen. Laws § 15–5-16 (g)(2)-(3), 2004). In Alabama, new legislation specifies that the rebuttable presumption against relocation of the custodial parent does not apply if the party objecting to the relocation has been found to have committed domestic violence (Ala. Code § 30–3-169.4, 2004).

Because parents are presumed fit, there is a presumption that their custodial rights trump those of all third parties. Only a few statutes prevent an abusive father who has killed the mother from prevailing in a custody battle against a third party such as the grandparents. For example, in Pennsylvania, a parent who has been convicted of first-degree murder of the child’s other parent shall not be awarded custody (American Bar Association, 2004). In Nevada, conviction of first-degree murder of the other parent results in a presumption against custody and visitation (American Bar Association, 2004).

The statutes that take domestic violence into account in rendering custody decisions vary as to the type of evidence of domestic violence that must be presented to trigger this consideration. Florida and Delaware both require criminal domestic violence convictions, while Minnesota only requires “’evidence of domestic violence’” (Jaffe, Crooks, & Wolfe, 2003, pp. 65–66). Notwithstanding the increased sensitivity to domestic violence, Professor Joan Meier recently concluded that trial courts are granting custody to batterers “more often than not” (Meier, 2003, p. 662). Some courts exclude evidence of domestic violence, while others find that, even where there is proof, the violence does not rise to the level of abuse established by the relevant statute (Meier, 2003).

Visitation

In most states it is difficult to deny visitation completely to the noncustodial parent, absent extraordinary circumstance. The existence of violence between the adults is rarely a sufficient basis. Based on misconceptions regarding the effects of witnessing domestic violence on children, courts may make judgments that may not be in the child’s best interest. Even if the courts award custody to a battered woman, they may not adequately protect her with visitation provisions. Nonetheless, because of the potential for abuse inherent in transferring children between parents, many courts consider ordering supervised visitation or other conditions on visitation when there are allegations of domestic violence. In states with legislation requiring that visitation arrangements take into account the custodial parent’s safety, and even in states without such legislation, a judge who hears testimony on the custodial parent’s fear of further violence can order restrictions on visitation to ensure the safety of the child and the victim. Examples of the types of conditions that courts might impose include the following:

  • Specifying the hours and days of visitation and prohibiting contact, either in person or via telephone, at other times;
  • Conditioning visitation upon participation in batterer’s counseling;
  • Specifying monetary penalties for violating the time restrictions by picking up or returning a child late or by failing to appear altogether (Field, 1998).

In the alternative, courts can order supervised visitation. Several states have court-related supervised visitation and visitation exchange centers in which trained staff can supervise visitation and the transfer of children between the parents (Lemon, 1999). California has developed a standard supervised visitation court form, and has promulgated Standards of Practice for Providers of Supervised Visitation. These standards require that centers establish written security procedures, inform their clients of these procedures, and obtain copies of all relevant court documents, including protection orders (Cal. Rules of Court, 2004). Notwithstanding the reasonableness of supervised visitation, such conditions will be set only if the victim has made clear the link between the children and the violence, or if the judge seeks to prevent the abuser from continuing harassment through access to the children.

In some states, courts are directed, through “friendly parent” provisions, to consider which parent is more likely to encourage contact between the children and the other parent. In Minnesota, the friendly parent provision does not apply if there has been a finding of domestic violence (Minn. Stat. § 518.17, 2003).

Court-Ordered Mediation

In many states, the parties are required to attend mediation sessions to resolve custody and visitation disputes. In domestic violence cases, however, mediation may not be appropriate for a variety of reasons, particularly because it requires the parties to cooperate in developing a parenting plan. Some jurisdictions prohibit mediation in domestic violence cases (Lemon, 2001). The Model Code of the National Council on Juvenile and Family Court Judges (1994, § 408) recommends that states not allow mediation when there is a restraining order in effect or, if it is allowed, then only under certain conditions, such as when the mediator is specially trained in domestic violence.

Child Abuse and Neglect

When a child witnesses domestic violence, the family may become involved with the civil child abuse and neglect system even if there is no direct harm to the child. The abuse and neglect system focuses on protecting children from harmful parental conduct. Once children have been adjudicated abused or neglected under a state child abuse statute, they may be removed from their homes and placed in foster care, or the family may be required to participate in mandated services, including treatment that addresses safety and domestic violence. Abuse and neglect can also be the basis for criminal charges.

Abuse and neglect statutes are premised on the concept that parents’ basic rights become attenuated as soon as the fitness of the parent(s) becomes questionable. In 2000, in Troxel v. Granville, the Supreme Court reiterated that parents have a basic right to raise their children, and that the decisions of fit parents should receive great deference (Troxel v. Granville, 2000). While courts give deference to the notion of parental prerogatives, the state can remove children from their parents for abuse and neglect. Moreover, when it comes to children’s rights to receive adequate services to prevent abuse and neglect, courts have generally reinforced the state’s decision-making process rather than parents and children’s rights.

Child witnessing of domestic violence may form the basis for a “failure to protect” petition before the juvenile court that hears dependency cases. Battered mothers’ parental rights may be affected or, in extreme circumstances, terminated based on a severe risk to the child due to continued exposure to the battering (Lemon, 1999). In fact, the intimate battering may affect the victim’s parenting by causing her to be less attentive to her children because she is appeasing the batterer to prevent additional violence (National Clearinghouse, 2002). While children’s advocates and battered women’s advocates often see these issues differently, the two systems are, in some jurisdictions, developing methods to coordinate their efforts to protect vulnerable family members (Greenbook Initiative, 1999; Meier, 2003; Ross, 2004). The next section briefly discusses failure to protect in abuse and neglect cases.

Failure to Protect

A common response of the child protective system in the United States has been to blame mothers for any harm to their children (Meier, 2003). When their partners batter them, women may be accused of neglect or failing to protect their children from witnessing the abuse. The child protective services agency may threaten the women with removal of their children unless they comply with mandated action, or the children may actually be removed from the household.

A recent decision challenging the practices of New York’s child protective services system found that the system was disproportionately and inappropriately removing children from the custody of battered women; the women were being blamed for their victimization, and their children were placed in foster care (Meier, 2003; Nicholson v. Williams, 2002; Ross, 2004). New York City’s Administration for Children’s Services claimed that battered women were responsible for “engaging” in the abuse, and for exposing their children to it (Nicholson v. Williams, 2002). Consequently, they removed the children from their mother’s care. None of the plaintiffs had physically abused their child; most of the children were removed from their mothers’ care because the mother had either remained with the abuser, or had extricated herself from the battering situation but had not found a stable environment in which to live. Notwithstanding the mothers’ care for their children, the City generally sought to remove the child before seeking removal of the batterer (Nicholson v. Williams, 2002). As numerous experts testified at the trial, however, removing the child is ill-advised and a dangerous disruption of the mother-child relationship (Nicholson v. Williams, 2002; Ross, 2004). As Robin Wilson points out, it is important to remove perpetrators, not children (Wilson, this volume, Chap. 3); focusing on the safety of the child does not require removal from a non-abusive mother.

Child Abuse

There is a trend to define exposing a child to domestic violence as a distinct form of abuse and neglect that is sufficient, in and of itself, to activate the intervention of child protective services. As a practical matter, many child protection agencies define neglect to include child exposure to domestic violence (Edleson, 2004). In addition, some states, including Alaska, Florida, and Montana, have enacted statutes that characterize exposing a child to domestic violence as a type of child maltreatment (Stone & Falk, 1997). In Alaska, for example, a court may take jurisdiction over a child based on “conduct by or conditions created by the parent… [that have] placed the child at substantial risk of mental injury as a result of … repeated exposure to conduct by a household member … [that is a domestic violence crime] against another household member” (Alaska Stat. $ 47.10.011, 2004). In Montana, legislation provides that committing violent acts against another resident of the same household may constitute psychological abuse or neglect but, unlike Alaska, the legislation explicitly protects the victim of violence by specifying that she will not be held responsible for failing to prevent the crime against her (Mont. Code Ann. § 41–3-102(19)(a)-(b), 2004).

Several courts have used similar statutes to terminate parental rights when children witness violence in the home. For example, an Alaska court found children abused and neglected and then terminated a father’s parental rights based on, among other findings, his exposure of his children to two incidents of domestic violence (A.H. v. State Dept. of Health & Social Services, 2000). Such statutes are controversial because they are so broad, they may cause unnecessary removal of children from their battered mothers, and they presume a harm that does not exist for every child exposed to domestic violence (Edleson, 2004; Weithorn, 2001). Moreover, they may force a child to testify against the perpetrator and, unless the statutes are carefully drafted, they may be used against a victim who is acting in self-defense (Kent, 2001). In Minnesota, a statute that defined a child’s exposure to domestic violence as requiring a child abuse report was repealed because it overwhelmed the resources of the child protective services system (Jaffe et al, 2003; Weithorn, 2001). To the extent that these statutes prove useful, they must focus on the batterer’s actions and on holding him accountable, rather than holding the victim responsible for the batterer’s actions (Weithorn, 2001).

Other Legal Actions for Children Who Witness Domestic Violence

Outside of family court, there have been other legal developments recognizing the significance of children’s exposure to domestic violence. In Wyoming, a tort lawsuit alleging intentional infliction of emotional distress was brought against an abuser on behalf of the two children who witnessed his physical abuse of their mother. The trial court granted summary judgment to the abuser, but the Supreme Court of Wyoming reversed (Bevan v. Fix, 2002).

State criminal statutes, which can be used to prosecute batterers for child exposure to domestic violence, may also define a new crime or provide for enhanced penalties in cases of child exposure. In Delaware, criminal endangerment of a child’s welfare explicitly includes the commission of a violent felony with the knowledge that a child family member witnessed the crime (Del. Code Ann. tit. 11 § 1102(a)(4), 2004). In several states, including New York and California, batterers have been prosecuted under the child endangerment statutes based on children witnessing the adult violence (Stone & Falk, 1997). In some criminal proceedings, there are mandatory enhanced penalties for domestic violence defendants if they committed their crimes “in the presence of a child” (Hagemeister, 2003). States have, for example, doubled the penalty when the act is committed in a child’s presence, defined witnessing as an “aggravating circumstance,” or even established new categories of crimes. For example, in Washington, a crime involving domestic violence that is committed within the presence or hearing of either the perpetrator’s or the victim’s children can justify an increased sentence.

FOUR PRINCIPLES TO GUIDE DECISIONS IN THE FUTURE

As this chapter shows, there has been a dramatic increase in the sociological analysis of child exposure to domestic violence as well as the legal recognition of its significance. Yet there are still many legal reforms that remain to be implemented to protect children and their families. Four guiding principles, at a minimum, should be applied when a child has been exposed to domestic violence, regardless of the legal or familial context (Spears, 2000). First, legal proceedings affecting children must consider the impact (if any) on each individual child of witnessing domestic violence, including how it affects self-esteem as well as relationships with both parents, and laws must be developed and administered to implement conclusions based on this individualized assessment. Second, the law should protect the parenting relationship between the victim and child. Third, priority should be placed on protecting the child and the victim from the perpetrator. Finally, the batterer should be held accountable for his or her actions.

The first principle, focusing on the impact of domestic violence on the particular child, reflects the research that shows exposure to domestic violence affects each child differently and depends on a series of factors. While assessment tools are difficult to develop, one curriculum for mental health practitioners suggests that an assessment should include a review of the violence, the child’s current symptoms, a detailed history of the child’s development, and the reactions of significant adults to the violence (Judicial Council of California, 2003). Assessment tools have also been developed to estimate the risk to children from continuing contact with the batterer, including a review of the abuser’s history of abuse toward his partner, of using the children against his partner, and his substance abuse history (Bancroft & Silverman, 2002).

This assessment should be used in child custody and visitation decisions, as well as abuse and neglect procedures. In order to do so, reforms are necessary to these legal requirements. First, with respect to custody and visitation, custody reform must focus on the effects of domestic violence on the child. Severe acts of domestic violence should call into question the fitness of the parent to care for the child. Second, all states should require admission of evidence of abuse and should train judges to understand the psychological and sociological dimensions of violence for children. Third, custody awards should be modified if abuse continues between the parents.

Domestic violence is relevant to the custody decision to rebut any charges that the mother has abandoned her children by leaving her husband, an act that otherwise might show that she should not be the custodial parent (Weithorn, 2001, p. 495). Judges often view a woman’s flight from battering without the children as evidence that the mother does not care about the children. Instead, leaving without the children could, and generally should, be viewed as a somewhat rational decision to save her life in the midst of her abuser’s violence. Otherwise, women face an extremely difficult choice: endure the beating to stay with the children or flee the beating and leave the children while trying to get help. Several states have already recognized this difficulty, but more states need legislation addressing this issue. While children may feel temporarily abandoned when their mother flees the violence, her ability to return and remove the children to a safer environment will provide them with better protection.

Domestic violence should similarly be a factor in modification of custody awards. Courts currently use one of two standards to decide whether custody should be modified: (1) a material change in circumstances so that the best interest of the child requires a change in custody; or (2) regardless of any changes, the best interest of the child requires modification. Courts consider various factors under each standard, much like they do in the initial child custody decision. In some states, an act of domestic violence will constitute changed circumstances (American Law Institute, 2002).

Improved policies would provide that domestic violence should influence requests for, and decisions on, modification of custody and visitation orders. A custody award may encourage one parent to harass the other parent. For example, an award of reasonable visitation rights that does not explicitly set out the hours and times of visitation may cause the noncustodial parent to visit with the custodial parent at any time. When a joint custody award permits one parent to badger and abuse the other, the abused parent should be able to petition for a custody modification based on the continued harassment and abuse. Because domestic abuse has deleterious effects on children, if the parents’ separation and a custody award do not prevent the abuse, the children will suffer.

In determining an appropriate modification to a visitation or custody arrangement, the court should weigh the abuser’s behavior toward the victim, rather than focusing exclusively on whether the behavior has been directed toward the child, or even on whether the child has directly observed it. If abusers know that courts may take action against them if they harass the other parent about their visitation rights, then children will not become pawns who are used as an excuse by the batterer to continue the abuse of the other parent. In addition, victims will be protected from further abuse caused by arrangements for visitation and joint custody.

While adding another reason to permit modification may detract from the desired stability and permanence of a custody order, continued abuse between the parents does not provide stability for the child. Rather than allowing the child to remain exposed to the abuse and perhaps causing more harm, courts should permit modification upon a showing of the continuation of the pattern of violence between the parents.

With respect to abuse and neglect proceedings, some have proposed treating any exposure to domestic violence as a form of abuse or neglect (Edleson, 2004). While the recognition that child exposure may result in harm is a significant step toward accepting the ramifications of domestic violence, such a broad-brush approach is highly problematic. Children are affected differently by their exposure. Focusing on the impact of the violence on the particular child will indicate whether the exposure has resulted in abuse or neglect. When there is a finding of abuse or neglect based on a batterer’s actions, failure-to-protect or neglect proceedings against the victim are certainly inappropriate, as some states have begun to recognize explicitly in their statutes. Failure-to-protect charges against the batterer become moot if the batterer has been removed from the situation. Moreover, because of the variability in children’s response to exposure, state involvement is not prudent in every case; instead, providing community services for children who need help is the better solution (Edleson, 2004). Nonetheless, there may be a paradox here: parents are constitutionally protected against unwarranted state intervention, and because “many of the child problems associated with exposure to adult domestic violence do not rise to the level requiring public intervention, yet one wonders if these families are left without any intervention whether their situations will worsen” (Edleson, 2004, p. 12). Families could voluntarily seek services, of course.

While most child abuse and neglect statutes require some finding against the custodial parent before child protective services becomes involved, the child protective system could use strategies designed to reduce blame against the battered parent. Fhese strategies would keep the children with the victim-parent, help keep the parent safe, and remove the risks presented by the batterer (Greenbook Initiative, 1999). For example, the Montana abuse and neglect statute specifies that if a child is in danger because of adult domestic violence in the household, the social service agency should protect the child, but may also prevent the child’s removal from the victim, make reasonable efforts to remove the perpetrator, and protect the child from unsupervised visitation with the perpetrator (Mont. Code Ann. § 41–3-301(2), 2005). Creating a safe parenting situation can be done with a set of strategies designed to remove the abuser from the home or change the behavior, such as through arrest and prosecution, civil stay away orders, or requirements that the batterer participate in counseling (Greenbook Initiative, 1999).

Fhe second principle suggests strategies that support the rest of the family unit by, for example, providing affordable housing, food, and child care so that the family can afford to stay away from the batterer. This can be done through removing the batterer and/or prosecuting him. Blaming the woman for not leaving her batterer or for allowing her children to see the violence committed against her does not help the children. For example, when a battered woman allows the perpetrator to return to her home, this must not be viewed as evidence of further neglect on her part; instead, the child protective system should examine why she permitted the abuser to return. The reason may be financial necessity (Spears, 2000), coercion, or fear, and the agency can then work with her on strategies that will protect her and the child. While removal to protect children should always be an option, this would be appropriate only after the agency has pursued safety planning and assessed the risks associated with removal rather than remaining within the family setting (Stark, 2002).

Another alternative is for child protective services to intervene in private litigation to support claims of risk to children from the batterer’s behavior (Meier, 2003). Although such an intervention could help keep the victim and child together and safe, the problem, as with many of the other supportive services that could be offered to these families, is that protection services are “notoriously under-funded, overwhelmed, bureaucrati-cally dysfunctional, and … fairly universally conditioned to see mothers as the problem” (Meier, 2003, p. 719).

Third, making the safety of the victim and child paramount may involve additional steps beyond mandating various protections during custody and visitation. In some jurisdictions, the address of the child and victim of domestic violence is confidential in child custody proceedings (Ga. Code Ann. § 19–9-7(b), 2000). In its newly promulgated Principles of the Law of Family Dissolution, the American Law Institute similarly provides for the confidentiality of information relating to child custody, such as the residential address and the child’s schedule, where there is a “reasonable fear” of domestic violence and disclosure “would increase safety risks” (American Law Institute, 2002, § 2.05(2)). In some serious cases, if protection orders and visitation conditions have failed and the victim and child remain at grave risk of continuing harm, then it may be appropriate to consider other measures, such as temporarily suspending visitation or terminating the batterer’s parental rights (Meier, 2003).

The fourth principle focuses on the perpetrator’s accountability and involves wide-ranging changes that both support potential continuing contact with the child, and yet also ensure that the batterer is held responsible. This could involve prosecution for the domestic violence, but also require batterer intervention programs so that batterers understand the consequences of their behavior for themselves and their children (Spears, 2000). It might also include substance abuse assessment since batterers are more likely to be substance abusers than non-batterers. States might consider mandatory batterer treatment programs in both the civil and criminal justice systems because such programs can be an important aspect in keeping other family members safe (Kent, 2001). Batterers could also be required to participate in parent education programs, so long as the educators have been trained in dealing with domestic violence (Lutz & Grady, 2004).

In the custody area, an abuser who has killed the other parent should not be considered a fit parent, absent clear and convincing evidence to the contrary. This presumption would apply regardless of whether the abusive parent is convicted of voluntary manslaughter or first-degree murder; the fact of the killing rather than the nature of the conviction would be prima facie evidence of unfitness. To protect victims who kill in self-defense, this presumption would be irrelevant when a parent who has experienced a history of abuse kills the other parent.

To effectuate these principles will require changes within the legal system. In many states, there are already special unified courts for family law cases that generally attempt to assign one judge to handle all issues involving one family, such as domestic violence, child custody, juvenile delinquency, divorce, and child abuse. There are trainings for family law judges on the link between domestic violence and custody decisions (National Council of Juvenile and Family Court Judges, 2004). Such trainings should cover the legal, sociological, and psychological implications of domestic violence, including such topics as: (1) civil and criminal remedies for domestic violence, such as civil order of protection statutes and law enforcement procedures (mandatory arrest laws or prosecutor policies on domestic cases); (2) results of studies on the effect of spouse abuse on children and the relationship between spouse and child abuse; (3) counseling programs available for abusers and their families, including alcohol and drug rehabilitation; (4) an overview of family violence; and (5) the impact of gender bias. With this background, judges can be more effective both at identifying domestic violence and at ordering trial procedures and custody arrangements that are in the child’s best interest, while also protecting the abused parent when necessary.

CONCLUSION

Ultimately, domestic violence requires more fundamental reform to judicial decision making about children and violence. To overcome existing prejudices and images, domestic violence must be seen as a problem affecting the best interest of the child and, in cases of severe abuse, parental fitness. Domestic violence reveals parenting skills. It shows that at least one parent has taken actions that are diametrically opposed to the best interest of the child. Indeed, battering should be understood as a “parenting decision” on the abuser’s part (Bancroft & Silverman, 2002). Instead of segregating abuse from custody or other issues concerning the child, there must be systemic recognition that violence is bad for the family. A narrow focus on actions that directly affect the child prevents courts from considering abuse between parents unless it is directed at a child. Because domestic violence has identifiable and deleterious effects on children, there must be a shift in the custodial standard to include this aspect of the parents’ relationship.

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ENTRY CITATION:

Cahn, Naomi. “Child Witnessing of Domestic Violence.” Handbook of Children, Culture, and Violence. 2006. SAGE Publications. 5 Apr. 2010. http://www.sage-ereference.com/hdbk_childculture/Article_n1.html

Chapter DOI: 10.4135/978-1-41297-606-0.n1

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