Protecting Children from Domestic Abuse at the Federal Level
It is federally mandated in the United States that the courts consider several forms of criteria in order to determine child custody. In the circumstances of domestic violence, these considerations vary by state. For example, California and Oregon have passed rebuttable presumption statutes, meaning that courts in those states must presume it is not in the child’s best interest to award joint or sole custody to a known domestic abuser.1 However, in Missouri and Connecticut, the courts presume that meaningful contact with both parents is in the best interest of the child, even when domestic violence has been proven against one parent.2 It is also encouraged that both parents collaborate in making decisions about their children’s healthcare, education, and financial needs.3 While the court may have good intentions in preserving the family unit, the negative effects of living with an abuser far outweigh any positive virtues associated with maintaining the family. Awarding custody to known abusers enables them to maintain control over their partner at the expense of their children’s wellbeing. Decisions regarding custody should, of course, be made to protect the “child's best interest.” However, when abuse is not a decisive factor in achieving this goal, a significant problem arises for both the child and the family unit at large. The definition of “best interest” varies by state, but is always made up of “a fact-intensive inquiry requiring the weighing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case”.4 As a result, the states have significant interpretive power; some states include spousal abuse as a consideration in “child’s best interest,” while other states do not. In order to properly fulfill the promise of upholding the children’s best interests, the courts should always consider the details of abuse before awarding custody, and implement rebuttable presumption statutes federally, even if this leads to decisions that diminish the role of one parent over another.
The act of committing domestic violence is one that is inherently detrimental to the family unit. Individuals who are unable to manage their anger appropriately towards their partners are unlikely to manage their anger appropriately towards their children. The National Association of Social Workers found that in 40 to 60 percent of domestic violence cases, children are also abused.4 When statistics show that there is a tendency for domestic violence to physically impact children, it is dangerous and imprudent to ignore these facts when awarding custody. Furthermore, even in cases where domestic violence is not physically directed towards children, it has negative impacts on their emotional wellbeing and feelings of safety, as it can cause long-term behavioral issues. These behavioral issues proliferate the circular pattern of domestic violence. The Juvenile & Family Court Journal assesses that “The impact of domestic violence on young children suggests that permanently negative changes in the child’s brain can occur…predisposing them to more violent, impulsive, reactive behavior”.5 In order to uphold the “best interest” of children, the courts must ensure that the children are not exposed to abusive behavior at a formative age, even at the expense of losing contact with a parental figure. The holdings of certain courts have acknowledged the validity of this reasoning. In C.V.E. v. Greene County Juvenile Office (2013), for example, the courts chose to terminate a mother’s parental rights after she chose to live with the father of her children who had been convicted of sexually abusing their children and physically abusing her.6 This demonstration of judgment by the court shows that it is within reason to assume that it is not in the “child’s best interest” to be in custody of someone who willingly exposes them to abuse.7 Children must be removed from the care of individuals who put their wellbeing at risk, even if physical domestic violence is only between parents.
When the courts award custody to abusers, it creates an avenue for abusers to perpetuate emotional abuse towards their partner. Relationships involving domestic violence reach beyond the scope of physical violence and often include financial control, emotional abuse, and manipulation. In instances where spousal abusers are awarded unsupervised visits or custody with shared children, they can continually control the whereabouts of their victim. By communicating poorly, changing plans last minute, missing visits, and sporadically making demands, abusers create uncertainty and uneasiness in their victim’s life, even after divorce is finalized or a restraining order is in place. When they have custody, abusers are given a reason to continue contacting their victim. These interactions often include harmful language or verbal abuse. These instances microdose abuse by causing stress for victims on a daily basis, even if they do not respond to the negative messages. Even if the court eventually takes action to insert a third party and stop these interactions, the victim is still subject to that initial experience. The Journal of Family Violence observes that “While fathers demanded flexibility from mothers, they refused to be flexible when mothers requested changes in the schedules, even in emergency situations”.8 This recurring phenomenon allows abusers to maintain control over their victim’s life by dictating their schedule and creating stress through uncertainty.
The state of Louisiana utilizes the Post-Separation Family Violence Relief Act to combat these issues. The statute suggests that because families who experience domestic violence have unique dynamics, it is necessary to recognize that past abuse, even not experienced by children directly, is often correlated with emotional abuse and manipulation.9 This act creates a barrier for abusers who are trying to gain custody of their children by asking the courts to first consider acts of spousal abuse. The statute further asserts that “The legislation further finds that the problems of family violence do not necessarily cease when the victimized family is legally separated or divorced. In fact, the violence often escalates, and child custody and visitation become the new forum for the continuation of the abuse”.10 In Melancon v. Russell (2018), this act was invoked to prevent the defendant, who abused the mother and consequently complicated her pregnancy, from obtaining any kind of custody of his children.11 Thus, the courts have set past precedents that recognize how spousal abuse can negatively impact children, even post-separation, and acknowledge that it is imperative to the safety and well-being of domestic violence survivors for these factors to be properly accounted for.
States which do not have rebuttable presumption statutes uphold the notion that children are always better off with two parents in their life, even if the parents have not always acted in their child’s best interest. To support this ruling, courts order anger management classes, parenting classes, and domestic violence classes. The purpose of these classes is to educate individuals on the negative impacts that certain behaviors have on the family unit with the ultimate goal of changing the abusers’ emotional responses.12 Ideally, abusers would be able to form new coping mechanisms and continue playing a role in their child’s life without damaging them further. If carried out effectively, this strategy would maintain family unity while beginning to mend the strained relationship between child and parent.
While they may be well-intended, these classes are not a sufficient solution as they often fail to substantively change the abusers behavior. Leading psychologists argue that “The situation which causes anger is not the problem, the unhealthy response to anger is the problem”.13 For example, in California case In re T.V. (2013), an individual who was incarcerated on several felony accounts of spousal abuse was awarded joint physical custody contingent upon him taking parenting classes, receiving domestic violence treatment, and seeing a therapist about anger management. Within the year he was released, several incidents of abuse built up to a severe incident of physical violence which necessitated subsequent police intervention and the removal of the child from the home.14 Even after the defendant had utilized several resources to manage his behavioral and emotional issues, the dangerous behavior persisted and caused trauma to the child. In this instance, the lack of rebuttable presumption statutes directly enabled the existence of an abusive atmosphere for the child. Placing children precariously into the custody of abusers, even after interventions, poses a well-studied risk to their emotional and physical wellbeing. Even though there are positive virtues associated with anger management classes, they have not been shown to yield results strong enough to justify domestic abusers having custody of their children. Federal implementation of rebuttable presumption statutes is an option better suited to protect children from being placed into a dangerous or abusive living environment.
The current variation in law, state by state, regarding the issue of child custody and domestic violence fails to protect the “child’s best interest”.15 When judges do not award custody with the consideration of domestic violence, they overlook a critical factor in determining what is best for the child and the entire family unit. A domestic abuser can utilize physical and legal custody to further control their partner at the expense of their children. The well-intentioned alternative of maintaining the family unit by ordering anger management and domestic violence classes has been found to be insufficient in preventing domestic violence, and therefore abusers should not be considered competent caretakers after only completing these classes. Rather, years of therapy and intervention may be required to decrease the likelihood of domestic violence reoccurring, something that’s currently unable to be implemented en masse. In order to ensure that domestic abusers are not enabled, Congress should standardize laws regarding domestic violence such that rebuttable presumption statutes are adopted nation-wide and spousal abuse is always considered when choosing whether to award custody to an abuser.
References
1 Mardi J. Montello; Kathleen C. DuBois, "Impact of Domestic Violence Allegations in Custody Determinations, The," St. Louis Bar Journal 47, no. 3 (Winter 2001): 14-19.
2 “Custody Decisions in Cases with Domestic Violence Allegations.” American Bar Association. Accessed April 4, 2022. https://www.americanbar.org/content/dam/aba/administrative/probono_public_service/as/judges_guide.pdf.
3 (§ 452.375.4, Mo. Rev. Stat.).
4 LSA–C.C. arts. 131, 134.
5 Jaffe, Peter G, Claire V Crooks, and Samantha E Poisson. 2003. “Common Misconceptions in Addressing Domestic Violence in Child Custody Disputes.” Juvenile & Family Court Journal 54 (4): 57–67. https://doi.org/10.1111/j.1755-6988.2003.tb00086.x.
6 C.V.E. v. Greene Cty. Juv. Off., 330 S.W.3d 560, 564 (Mo. Ct. App. 2010). [7 ]LSA–C.C. arts. 131, 134.
8 Zeoli, April M, Echo A Rivera, Cris M Sullivan, and Sheryl Kubiak. 2013. “Post-Separation Abuse of Women and Their Children: Boundary-Setting and Family Court Utilization Among Victimized Mothers.” Journal of Family Violence 28 (6): 547–60. https://doi.org/10.1007/s10896-013-9528-7., 554.
9 La. Stat. Ann. § 9:361.
10 Ibid.
11 Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955, 959.
12 Sanderfer, Mary A. 2013. “The Effectiveness of Anger Management Programs with Court Mandated Clients: A Provider Perspective.”
13 Sanderfer, Mary A. 2013. “The Effectiveness of Anger Management Programs with Court Mandated Clients: A Provider Perspective.”
14 In re T.V., 217 Cal. App. 4th 126, 130, 157 Cal. Rptr. 3d 693, 695 (2013).
15 LSA–C.C. arts. 131, 134.