Domestic Violence and Child Abuse: The Continuing Quest for Solutions
by Erin Liotta
After Alex’s parents split up, Alex’s father began abusing him. When Alex left to go live with his mother and her new husband, his stepfather abused him there too, hurling insults and inflicting extreme punishments at the slighted provocation. In both homes, Alex witnessed domestic violence. When he was young, Child Protective Services (CPS) routinely came to his house before it finally decided to remove him and his brother years later. Tragically, Alex still was not safe, and was abused in foster care as well. He is now 21 years old, living on his own, and trying to heal the wounds of his past. When he looks back on his childhood, it hurts the most to feel like no one outside his home cared what was happening inside. He says that he just wishes someone had been paying attention.
Domestic violence harms children, and not always in ways that are readily apparent. The research on its effects continues to evolve, but what has long been clear is that the solution may not be compatible with the bright-line rules that our law tends to favor. Over the years, the legal system has tried its hand at many solutions, with mixed results. One model is now emerging in California to provide legal representation to domestic violence survivors and their children who need to appeal decisions made in family court. This individualized, empowering approach may finally present a replicable model to help children like Alex stay safe.
Our Evolving Understanding of How Domestic Violence Hurts Kids
Traditionally, society viewed domestic violence as a “private” affair, one that did not concern those outside of the home. Police would not intervene if called, and courthouse doors were not open to battered spouses seeking redress. Part and parcel of this was the mistaken view that domestic violence affected only the adults in the home, that it was not relevant to children so long as they were not physically harmed themselves.1
For some time now, studies have proven that domestic violence affects children even when the violence appears to have been directed at the adult partner and not the children. We know now that domestic violence can be a red flag for child abuse that might otherwise go unnoticed. In 30 to 60 percent of homes where an adult is abusing his or her partner, that person is also abusing the children.2 These risks may vary depending on the non-abusive parent’s age, education level, socioeconomic status, and social supports.3 At the extreme end, domestic violence predicts maltreatment-related child fatalities more than any other identified factor.4
Even when a batterer does not also physically abuse a child, domestic violence can have profound and long-lasting effects on a child’s well-being. Dr. Bruce Perry of The ChildTrauma Academy explains that children who grow up in homes where they are exposed to domestic violence “end up with mental health problems at a rate higher than children who are actually the direct victims of physical abuse.”5 Exposure to domestic violence is associated with increased rates of mental health issues such as anxiety and depression, increased rates of learning disabilities, and increased involvement with the juvenile justice system.6 The effects may be most profound for very young children; the same spongelike quality that allows children’s brains to acquire language quickly also makes them more vulnerable to the trauma of violence at home.7
Many people may wonder, “Why doesn’t she just leave him?” when they learn that a woman’s partner is abusing her.8 Counterintuitively, separation is not always the appropriate response. Abusers are significantly more likely to assault or murder their partners post-separation, and this heightened risk persists for at least two years.9 Separation may also increase the risks to children. A review of available evidence indicates that rates of child physical and sexual abuse may increase following the caregivers’ separation, due to the non-abusive parent’s inability to intervene and due to retaliation by the batterer.10 One study found that retaliation against the mother was the main motivator behind men’s sexual abuse of their children in 10 percent of cases.11
Concerns about leaving an abuser are compounded by the realities of child custody disputes. Abusers are more likely to fight for custody of children than are non-abusive partners.12 Where child custody is litigated, abusive partners win sole or joint custody in the majority of cases.13 Further adding to the risk to children is the fact that reports of child abuse tend to be discounted—whether by the courts, CPS workers, or law enforcement—where there is an ongoing custody dispute.14 These stakeholders may mistakenly believe that a parent is filing a child abuse report in order to gain an upper hand in the custody battle. Studies show, however, that rates of false reports are as low in custody cases as they are in cases where there is no ongoing custody dispute.15
Legal Responses Yield Mixed Results
Thankfully, the law has evolved since the days where it turned a blind eye to children in violent homes. Today, many states recognize the ways in which domestic violence harms children. Child custody laws in the vast majority of states now take domestic violence into consideration, whether as a factor to be considered in making a custody determination or to create a rebuttable presumption against custody to the batterer.16 Some states have enacted statutes making it a crime to commit domestic violence in the presence of a child or otherwise adding sentencing enhancements if a child is present.17 If nothing else, these measures represent an acknowledgement of the risks posed to children in violent homes.
While the law should recognize how domestic violence hurts kids, when the pendulum swings too far children can again get caught in the crosshairs. Ignoring children in the home is the wrong approach, but that does not mean that summary removal of children from their caregivers, per the policy of some child welfare agencies, is appropriate.
Perhaps most famously, New York City’s Administration for Children’s Services had a policy of removing children from homes in which domestic violence was present. They routinely charged battered mothers with “neglect” on the grounds that the mothers “allowed” their children to witness domestic violence. This practice continued until ten years ago when, in response to a federal class action suit,18 the city entered into a settlement agreement that ended the practice of automatic removal. The settlement followed on the heels of a ruling from the New York Court of Appeals (the highest court in the state) that a presumption that removal is appropriate whenever domestic violence is present is impermissible.19
As the New York Court of Appeals recognized, removing children from their homes may inflict more harm on the children than good. As our understanding of the effects of violence on children has evolved, so has the research into mitigation of these effects. Last year, the Administration on Children, Youth, and Families published a literature review examining “protective factors” for children and youth exposed to domestic violence. The review aimed to identify “[t]hose characteristics strongly associated with improved outcomes” in order “to enhance and develop new interventions . . . .”20 For children exposed to domestic violence, studies identified “parenting competencies” as the mitigating factor most strongly supported by the evidence.21 These competencies include “strong parent-child bonds” and “emotional support.”22 Significantly, these qualities are ones that can be taught: the literature review found that interventions to improve parenting competencies, such as to develop “family management skills, nurturing abilities, . . . strengthening family relationships” led to positive impact on the children and their ability to heal from past trauma.23
Another recent literature review indicates that where children are removed from domestic violence and go to out-of-home placements such as foster care, outcomes are no better and are potentially worse than if they had remained at home.24 Our solutions must take into account not only the risks posed by inaction, but the unintended consequences of overreaction as well.
A New Model for Helping Survivors and Children
If advocates, lawyers, judges, and social workers feel confusion over how to help children where domestic violence is present, that is understandable. The safety risks involved, specific to each family’s case, make any one-size-fits-all approach questionable.
In the Nicholson case, the New York Court of Appeals called for an individualized approach to assessing each domestic violence situation where children are involved. The court recognized the complicated interplay of factors that a parent experiencing domestic violence must weigh in her particular situation, and that these factors will play out differently in each case: the “risks attendant to leaving, if the batterer has threatened to kill her if she does;25 risks attendant to staying and suffering continued abuse; risks attendant to seeking assistance through government channels, potentially increasing the danger to herself and her children; risks attendant to criminal prosecution against the abuser; and risks attendant to relocation.”26 As New York City’s child welfare agency learned, even well-intentioned policies of protecting children may be harmful if applied universally without individual consideration of the nuance of each situation.
In California, a new organization presents a potential model for the rest of the country. The Family Violence Appellate Project, founded in 2012, represents domestic violence survivors in appealing family law cases. The organization focuses mainly on restraining order appeals and custody disputes where custody of the children has gone to the batterer, with a priority to those cases in which “survivors and their children are in danger of ongoing abuse.”27
With custody of children going to batterers in the majority of cases, and with batterers more frequently having legal counsel than domestic violence victims, this legal representation fills a critical gap in need. By focusing on appellate level work, the project ensures the broadest potential reach. Part of its work also entails petitioning California courts to publish decisions of significance so that future litigants may rely on the cases as precedent.28 Nancy K.D. Lemon, a nationally recognized expert in domestic violence law and Legal Director of the Family Violence Appellate Project, argues that legal representation at the appellate level is especially critical because of the high standard of review and because appellants need to make their cases based on legal rather than factual grounds.
Ms. Lemon states that theirs is the first statewide organization in the country focused solely on domestic violence appeals.29 Some lawyers are looking to the project as a model for how to provide guaranteed legal counsel to low-income litigants in civil suits (known as “civil Gideon” after the U.S. Supreme Court case that established a right to counsel for defendants in criminal cases). Creating a right to counsel in family law cases could go an enormous way toward changing the lives of domestic violence survivors and their children. “I think we are a really successful pilot project,” Ms. Lemon reports. “I would really like to see other states do this.”30
If replicated, Family Violence Appellate Project presents a potential third way to address the needs of violence survivors. Its model avoids the pitfalls of overbroad legislative and policy-level solutions that may do as much harm as good, while ensuring that survivors and their children are not ignored by a system that struggles to understand their plight. The project uses a careful, case-specific approach by advocating for individual clients on appeal with an eye toward creating better law in the courts. The approach is both impactful and individualized. If the project achieves what it sets out to do, the courts, the case law, and the legal system itself will become a better, smarter, more reliable ally for victims of abuse and their children.
Where domestic violence and child abuse intersect, solutions will not be simple and rules are not always easily applied. But we owe it to this generation of children to continue trying, to figure out how best to prevent and mitigate the effects of domestic violence and to adjust our practices accordingly. And with domestic violence exposure the best predictor of whether a child will become an abuser later in life,31 we owe it to future generations as well.
Erin Liotta is a staff attorney at the National Center for Youth Law focusing on impact litigation.
- Peter Jaffe et al., Matching Parenting Arrangements to Child Custody Disputes in Family Violence Cases, reprinted in Nancy K.D. Lemon, Domestic Violence Law 437-38 (3d ed. 2009).
- Id. at 437.
- Jennifer Sheldon-Sherman, et al., Extent and Nature of Child Maltreatment-Related Fatalities: Implications for Policy and Practice, 92 Child Welfare 41, 45 (2013).
- DVD: First Impressions: Exposure to Violence and a Child’s Developing Brain (Cal. Dep’t of Justice, Office of the Attorney General 2008), available at https://xnet.kp.org/domesticviolence/news/first_impressions.html (hereinafter “First Impressions”).
- Lynn Hecht Schafran, Evaluating the Evaluators: Problems with “Outside Neutrals,” The Judge’s Journal, Winter 2003, at 13.
- First Impressions, supra note 5.
- Intimate partner violence occurs most commonly by male batterers against female victims; hence the use of gendered terms in this article. Violence does also occur by women on men, women on women, and men on men in intimate relationships.
- Elizabeth Dermody Leonard, Convicted Survivors: The Imprisonment of Battered Women Who Kill 7 (2002). The National Crime Victimization Survey found that women who separated from their abusers were victimized at a rate three times higher than divorced women and a whopping 25 times higher than those of married women. Id.
- Lundy Bancroft & Jay G. Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 154 (2002).
- Mildred Pagelow, Justice for Victims of Spouse Abuse in Divorce and Child Custody Cases, 8 Violence and Victims 69, 74 (1993).
- See, e.g., Domestic Violence Legal Empowerment and Appeals Project, Rates at Which Accused and Adjudicated Batterers Receive Sole or Joint Custody (2013); Jay G. Silverman et al., Child Custody Determinations in Cases Involving Intimate Partner Violence: a Human Rights Analysis, 94 Am. J. Pub. Health 951 (2004).
- A recent and tragic example of discounting reported child abuse occurred in the case of B.H. v. San Bernardino, currently before the California Supreme Court. Amidst an ongoing custody dispute, law enforcement did not report suspected child abuse to CPS as required under California law. Several weeks later the abuse recurred, leaving the two-year-old child permanently brain damaged. The National Center for Youth Law filed an amicus curiae brief in the case that can be read here.
- Amicus Curiae Brief in Support of Pl.- Appellant, B.H. v. San Bernardino, No. S213066 (Cal. May 7, 2014), at 15-16 (citations omitted).
- Lois Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment, 53 Hastings L.J. 1, 13-14 (2001).
- See, e.g., Idaho Code Ann. § 18-918(4) (2013) (doubling the maximum penalties under the state domestic violence statute where the violence took place “in the physical presence of a child or knowing that a child is present and may see or hear an act of domestic assault or battery”); Or. Rev. Stat. § 163.160(3)(c) (2014) (defining assault in the fourth degree to include when the “assault is committed in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child residing within the household of the person or victim”); Cal. Penal Code § 1170.76 (Deering 2014) (elevating certain forms of assault and battery to an aggravation of the crime where it was committed in the presence of a child).
- Nicholson v. Scoppetta, 116 Fed. Appx. 313 (2d Cir. 2004). The National Center for Youth Law filed an amicus curiae brief in the case during its appeal to the United States Court of Appeals for the Second Circuit.
- Nicholson v. Scoppetta, 820 N.E.2d 840, 855 (2004). For more information on the decision, see Karen Freedman and Betsy Kramer, New York Raises the Bar for Interdisciplinary Practice in Family Violence Cases, Youth Law News (Oct. – Dec. 2004).
- Dev. Servs. Group, Protective Factors for Populations Served by the Administration on Children, Youth, and Families: A Literature Review and Theoretical Framework, Exec. Summary 1 (2013).
- Id. at 17, 21.
- Id. at 21.
- Ijeoma Nwabuzor Ogbonnaya & Cara Pohle, Case Outcomes of Child Welfare-Involved Families Affected by Domestic Violence: A Review of the Literature, 35 Children & Youth Servs. Review 1400 (2013).
- As noted above, the risk of being killed by one’s abuser is highest during the two years immediately following separation. See supra note 9.
- Nicholson, 820 N.E.2d at 846.
- Family Violence Appellate Project, Our Mission, www.fvaplaw.org/our-mission.html (last visited June 16, 2014).
- Unlike in federal court, where litigants may cite to unpublished decisions as persuasive authority, in California state court litigants may not cite to or rely on unpublished decisions. Cal. R. Ct. 8.1115. When a court issues an unpublished opinion, any member of the public may request within 20 days that the court publish it. Cal. R. Ct. 8.1120.
- DV LEAP, based in Washington, D.C. also does appellate advocacy for survivors but with a different geographic focus. Legal services organizations will also sometimes appeal individual decisions on behalf of their clients.
- Telephone Interview with Nancy K.D. Lemon, Legal Director, Family Violence Appellate Project (June 4, 2014).
- Joan Zorza, Batterer Psychopathology: Questions and Implications, reprinted in Nancy K.D. Lemon, Domestic Violence Law 83 (3d ed. 2009).