Library: Domestic Abuse

Addressing the Effects of Domestic Violence on Children

Introduction

There is a tendency in law and policy to compartmentalize issues; to address domestic violence as a women’s issue, or a criminal justice issue, separate from questions of the safety and welfare of children. In recent years, however, advocates and policymakers have become more aware that domestic violence harms not only the battered spouse, but the children who witness the abuse and must live in the families torn apart by it.

Millions of children are exposed to domestic violence each year, and even those who are not themselves abused may be physically harmed when they try to protect parents or are caught in the crossfire. Children who grow up witnessing domestic violence are more likely to become abusers themselves: they "learn … that violence is an acceptable way to cope with stress or problems or to gain control over another person." ¹ Children of battered women are up to 15 times more likely than children overall to be physically abused and neglected, and girls with violent fathers are much more likely to be sexually abused. Children who witness domestic violence may also learn to believe "that violence and subordination are intrinsic to all relationships," and especially that women are normally subordinate to men. Behavioral symptoms they exhibit include inability to concentrate in school, learning disabilities, violence and aggressiveness, and stress-related physical symptoms. Children who witness abuse are 50 times more likely to abuse alcohol and drugs, and six times more likely to commit suicide than children in the general population.²

Children in families where there is domestic violence are affected by a complex network of laws and policies, both federal and state, including: laws explicitly addressing domestic violence; laws governing child custody and visitation; federal and state child abuse and neglect laws; and laws governing welfare programs3. These laws and policies interact in many ways. Some of them may benefit children, and mitigate the harmful effects of domestic violence on their safety, welfare, and development. Others may work at cross-purposes, and/or have unintended harmful effects on children. Domestic violence may have especially severe effects on children in immigrant families, who are affected not only by the cumulative effects of child welfare and welfare reform laws, but federal immigration laws as well.

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Violence Against Women Act

The passage of the Violence Against women Act of 1994 (VAWA)4 reflected a growing national recognition that domestic violence is not merely a "private" matter, but an issue of crime prevention, public safety, and prevention of gender-based discrimination — that is, an issue of civil rights for women.5 Although VAWA is an important step, it has been criticized as having limited effectiveness.6 VAWA address the impact of domestic violence on children only in some provisions regarding treatment, counseling, education regarding the links between domestic violence and child abuse, and public school curricula on domestic violence.7

The legislation does recognize the particular vulnerability of battered immigrant women, and allows those who are battered, or whose children are abused, by a citizen or legal permanent resident spouse to "self-petition" for their own legal permanent resident status8. The scope of this provision is fairly narrow, however. It applies only to battered immigrants who are married to, or can prove that their child has been abused by, a citizen or legal resident. Other immigrant parents and children are still vulnerable to violent partners' use of threats of deportation and/or promises of marriage, and consequent legalization of their status, to prevent them from leaving or reporting violence. Such threats and promises are especially potent when an immigrant parent's children were born in the U.S. — potentially forcing her to choose, if faced with deportation, between uprooting her children from their home country or leaving them behind.

In response to the gaps and omissions in VAWA, a new legislative proposal, "VAWA II," is currently pending.9 Its content is still tentative, but if enacted it may address the impact of domestic violence on children, by promoting the use of legal presumptions in favor of giving child custody to the non-violent parent; promoting the use of supervised visitation centers (for situations in which an abusive parent’s visitation rights could put the child or abused parent at risk of further harm); and reauthorizing funds for training family court judges and court personnel, child protective caseworkers, and guardians ad litem on the effects of domestic violence on children.

State Civil Laws Addressing Domestic Violence

The federal policies expressed in VAWA (and the proposed VAWA II legislation) should be seen in the context of ongoing state efforts to provide law enforcement and civil court remedies for domestic violence. Although these remedies generally are not specifically targeted at children, they have substantial effects on children’s safety and welfare in that they give non-violent parents tools to protect themselves and their children from violence.

All states currently have processes for victims of domestic violence to obtain restraining orders, which compel a violent partner to stay a specified distance away from the victim, her home, place of work, etc. State laws vary as to the duration and breadth of these orders. In California, for example, restraining orders can last up to three years, can protect children and other "family or household members" as well as the victim herself, and can include additional provisions such as repayment of expenses caused by the violence, mandated batterers’ treatment programs, etc.10 Some states allow child custody, visitation, and child support issues to be resolved in the context of a restraining order action, so that the victim and her children need not bring a separate legal case to resolve these matters.11

Restraining orders and other legal remedies, however, will help domestic violence victims and their children only if the remedies are widely accessible and effective, even for those who cannot afford lawyers. As required by VAWA, many states have recently enacted provisions which eliminate or limit court filing fees for domestic violence victims seeking restraining orders, thus removing one serious financial barrier.12 Several states go even further, and require perpetrators of domestic violence, rather than the victim seeking the restraining order, to pay court fees.13 Moreover, some states have responded to the concern that many domestic violence victims cannot afford to pay lawyers, and do not have access to free or low-cost legal services. For example, Oklahoma gives priority in its funding of legal services for low-income persons to cases involving domestic violence14. Similarly, Virginia has authorized appointment of pro bono attorneys at proceedings seeking restraining orders.15

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Child Custody

More than half the states have laws requiring courts to consider domestic violence when making child custody and visitation awards.16 These standards are an improvement over the view that violence between parents is irrelevant to child custody and visitation, but they still leave a great deal of discretion to the court. Judicial bias and misconceptions about domestic violence and battered women may limit the effectiveness of these laws.17

The American Bar Association recommends that state laws go beyond merely requiring consideration of domestic violence in child custody decisions, and create a presumption against giving custody of children to perpetrators of domestic violence. The ABA favors this presumption for three reasons:

First, the abuser has ignored the child’s interests by harming the child’s other parent. Second, the pattern of control and domination common to abusers often continues after the physical separation of the abuser and victim. Third, abusers are highly likely to use children in their care, or attempt to gain custody of their children, as a means of controlling their former spouse or partner.18

If enacted, the federal VAWA II legislation would also promote the use of presumptions against granting child custody to perpetrators of domestic violence.

Several states have enacted presumptions that it is not in a child’s best interest to be in the custody of a domestic violence perpetrator,19 or have created other presumptions about domestic violence, and provided detailed guidance to courts in making child custody decisions. For example, Iowa requires an unrebutted finding of domestic violence to outweigh any other considerations in the custody award, provides a list of factors for courts to consider in determining the existence of domestic violence, and mandates that absence or relocation of a battered parent not be used against her.20 Also, some state statutes require that courts take into account the safety of both the child and the non-violent parent when making custody or visitation decisions.21

However, this recognition that domestic violence should be taken into account in child custody decisions has been counteracted by the "fathers' rights" movement, and by a more general trend, over the last decade, toward a strong preference for joint legal custody (both parents have the right to make decisions about a child’s schooling, health care, etc.) and/or joint physical custody (the child lives with both parents for approximately equal amounts of time). The impetus behind this trend is the belief that continuing contact and involvement with both parents generally benefits children. In addition, many states have enacted "friendly parent" provisions allowing courts, in ruling on custody, to favor the parent who is more willing to cooperate and share parenting. Such provisions "effectively compel parents to accept some form of joint custody, rather than risk losing custody completely by opposing the joint arrangement."22 These laws may benefit most children, but they may also create risks of harm for both parents and children in cases of domestic violence. Therefore, some states which generally favor joint custody make exceptions for cases in which there is a history of domestic violence.23

Finally, state statutes addressing the problem of parental kidnapping are important in protecting children from the adverse effects of domestic violence. However, these laws need to be carefully drafted to exempt parents who, in good faith, flee with their children to escape domestic violence, from criminal prosecution and from being penalized in child custody decisions.24

Child Visitation

As in custody laws, the general trend favors liberal visitation between children and their non-custodial parents. However, many states have statutes addressing the problems raised by visitation with parents who have perpetrated domestic violence. Some states simply require courts to take into account the safety of the custodial parent and the child when crafting visitation awards.25 Others either encourage or require the use of supervised visitation.26 At least one state statute completely denies visitation rights to the perpetrator, if the court finds that safe visitation is not possible.27

Although supervised visitation may be essential in ensuring the safety of the abused parent and the child, it can be logistically difficult and expensive for low-income families.28 One recent commentator points out that "only a few communities have programs to carry out court-ordered supervised visitation in a safe and effective manner ….29 Without community facilities, a battered woman may have to find an untrained friend or relative to supervise the visitation...." The American Bar Association recommends that supervised visitation costs be paid by the perpetrator of domestic violence.30 Some states have created state-run supervised visitation centers.31 California has set statutory standards for providers of supervised visitation, and Florida has established a clearinghouse of supervised visitation providers.32 VAWA II, if enacted, might further encourage states to develop supervised visitation centers.

Mediation of Child Custody Disputes

There is also a general trend in state family-law statutes towards promoting mediation as an alternative to litigation in child custody disputes. Mediation may be problematic in cases involving domestic violence, however. Commentators have argued that "effective mediation requires voluntary participation, relatively equal bargaining power, similar quality of representation, and approximately equal investment in the outcome."33 Abusive relationships are often characterized by extreme imbalances of power. Moreover, the non-violent parent often has fewer financial resources, and so may lack legal representation and/or be susceptible to pressure to make economic concessions in exchange for custody. For these reasons, some states have exempted cases involving domestic violence from mediation requirements.34 However, being exempted from mandatory mediation may not be of much help to low-income battered women, for whom the only alternative to mediation may be pro se litigation.

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The Adoption and Safe Families Act of 1997

In 1997, Congress passed a major revision of federal child welfare law, the Adoption and Safe Families Act (ASFA),35 in response to concerns about large numbers of children who spend years in foster care before being adopted. ASFA emphasizes prompt termination of parental rights in cases of abuse and neglect where children cannot safely return home, and efforts to place foster children in adoptive homes.

Although the goals of shortening children’s stays in foster care and improving adoption rates may benefit many children,36 ASFA has some disturbing implications for children affected by domestic violence. The new, shorter time lines for foster care cases are problematic for battered parents. Under ASFA, a "permanency planning hearing" must be held for all foster children within 12 months of removal from home. At this hearing, the court must decide whether to return the child home, or move toward termination of parental rights or another alternative plan. (Prior to ASFA, many states allowed 18 months.) Moreover, ASFA requires that termination of parental rights be sought for any child who has been in the state’s care for 15 of the prior 22 months, and in any case where the child would seriously be harmed by returning home. ASFA does permit exceptions for cases in which a child is living with a relative, termination would be against the child’s best interests, or the state has failed to provide services that could have helped make it safe to reunify the child with the parent.

These time lines, while understandable in view of children's need for stable and permanent homes, may be difficult for battered parents to meet. Such parents may need considerable time to take steps necessary to ensure their own safety (such as moving, seeking a restraining order, etc.), recover from physical and emotional trauma, establish a new home, find a new job, and learn parenting skills necessary to help their children recover from trauma. If the new time lines are applied too rigidly, the result could be termination of non-violent parents’ ties with their children, in situations where it would be better for the child to remain somewhat longer in foster care, to allow the parent to complete the steps needed to reunify safely with the child. On the other hand, it is not clear how much effect the new 15-month time line will have, because it allows an exception for parents who have not received services needed to resolve barriers to the child’s safe return. Since many states have severe shortages of basic services such as counseling, drug and alcohol treatment, mental health treatment, housing assistance, etc., this exception could swallow the rule.37

Other ASFA provisions that may cause problems for children affected by domestic violence are those allowing states to make exceptions to the "reasonable efforts" requirement. Although the exception for cases involving crimes against children does not apply to the non-perpetrating parent (who must still be helped to reunify with the child), the possibility remains that states will interpret the exception broadly, for example, to cover cases in which a non-violent parent has "failed to protect" a child from abuse by a violent partner. Overall, the impact of ASFA on children affected by domestic violence depends mainly on how the Act is implemented in each state, and on the preexisting framework of state child welfare statutes, court decisions, and child welfare agency policies and practices.

State Child Welfare Laws and Domestic Violence Cases

All but 12 states have child abuse and neglect laws that criminalize omissions as well as affirmative acts,38 and the trend is toward increased parental liability for "failure to protect" children from abuse by other persons.39 The most common punishable omissions include leaving the child alone with a known abuser, being present when abuse takes place and failing to intervene, and failing to seek prompt medical attention for an injured child. Only three states include statutory defenses in failure-to-protect cases for parents who can prove that attempts to protect the child would have resulted in additional injury to either themselves or the child.40

Criminalizing battered parents’ "failure to protect" their children, and depriving these parents of reunification services, may unfairly penalize these parents and also be contrary to the best interests of their children. One commentator has observed that "Mothers tried under these statutes are convicted if their attempts to protect their children are ineffective, or if fear for their safety or their children's safety effectively prevents intervention."41 Another argues that these laws essentially punish battered parents regardless of whether they are at fault: "When determining whether a mother has performed her duty to protect her child, courts employ a strict liability test … [and] neglect to consider the particular circumstances surrounding a woman's life and the reasons for her inability to protect her child from harm."42 The underlying assumption that a "good mother" will always manage to protect her children from harm fails to recognize that many battered parents lack resources to escape quickly from violent situations and feed, clothe, and house their children on their own; that attempts to escape a violent home may actually increase the battered parent’s, and the children’s, risk of being injured or killed; and that battered parents may, to protect their own and their children’s lives in the long term, be compelled to endure abuse until they can develop a safe and effective plan to leave the violent situation.43

Even in the absence of specific statutes that criminalize "failure to protect" a child, state child welfare laws may be interpreted and applied in ways that adversely affect battered parents and their children. Low-income battered parents in particular may be placed in a double bind:

If a mother with no financial resources flees the home of her abuser, she may have no choice but to find shelter in a setting that is not conducive to the health and welfare of her children, thus facing child protective intervention. However, if she recognizes her inadequate shelter choices and financial resources, and tries to cope with the violence while remaining in the home with an abuser, child protective services may charge her with "failure to protect" her children and forcibly place them in foster care.44

In some cases courts have gone so far as to terminate parental rights on the ground that the non-violent parent is "likely to enter into abusive relationships in the future."45 One commentator concludes that "If mothers hope to regain custody, they must be patient, obedient, and compliant with all juvenile court mandates. ... But the litany of parenting classes, counseling, drug testing, and psychological evaluations the juvenile court orders, ignores the mother's needs for housing, child care, drug treatment, employment, or mental health services." Moreover, "attorneys, judges, and caseworkers still frequently blame women for their victimization. The assumption that the woman is a ‘bad mother,’ or at least an inadequate mother in a ‘dysfunctional family,’ may lead the state to remove her children in order to protect them even when there is no child abuse."46 Similarly, another commentator concludes that "many state courts have chastised and punished the battered mother for her inability to leave the batterer," and that "courts often ‘note’ or ‘acknowledge’ the fear of a battered woman but refuse to consider the reasonableness of these fears when determining the woman's culpability with regard to her duty to protect her children."47

State Innovations in Addressing Domestic Violence

Some state legislation has begun to recognize and address the fact that removing children from non-violent parents, and terminating these parents’ rights on grounds of "failure to protect," may be both unfair to the parent and harmful to the child. States have passed laws seeking to shift child protection agencies’ responses away from removing children from homes in which domestic violence occurs, and toward helping the non-violent parent achieve safety for herself and the child together.

For example, recent California legislation requires courts in child abuse and neglect cases to consider ordering the violent parent to leave the home, instead of removing the child. California child welfare agencies must assist battered parents in obtaining restraining orders and other services and supports.48 Other states also allow restraining orders against perpetrators of domestic violence to be issued in child welfare cases (instead of requiring the non-violent parent to file a separate legal action).49 Some states have begun to create statutory presumptions that certain types of behavior, when caused by domestic violence, should not be taken into account when judging a parent’s fitness. Although most of these apply only in the context of custody disputes and not abuse and neglect cases, a few seem to apply to both situations. For example, a 1995 Georgia law forbids courts from construing a parent’s domestic-violence-related absence from the home as abandonment of a child.50

Other states have begun to study or investigate ways to integrate the child welfare system, services for domestic violence victims, and enforcement of criminal laws against domestic violence, to protect children more effectively. For example, Nevada has created a task force for this purpose.51 Oregon’s child welfare agency cross-trains child protection workers and domestic violence workers about the relationship between the two forms of abuse, and has pilot programs in which domestic violence advocates are placed in child welfare agency offices.52

Child Welfare Laws and Immigrant Children

Immigrant children who cannot live safely at home due to domestic violence may benefit from the "special immigrant juvenile status" provided in federal law for immigrant foster children. However, this law may not help many immigrant families affected by domestic violence, since it applies only if a battered woman relinquishes custody of her child to the state, or is found to have abused or neglected the child. Moreover, gaining legal status for a child under this provision does not resolve problems regarding the battered parent's immigration status.

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Domestic violence can cause families to become poor, and make it harder for them to escape poverty, in several ways. Many perpetrators of domestic violence deliberately sabotage victims’ efforts to become financially independent by pursuing education or employment,53 and the physical and psychological injuries caused by domestic violence may make it harder for victims to find and keep jobs.54 In order to escape violence, victims may be forced to leave their homes and jobs and flee to remote locations. Finally, many non-violent parents cannot enforce their rights to child support from an abusive non-custodial parent without endangering themselves and their children.55 The correlation also runs in the other direction: poverty can make women and children more vulnerable to domestic violence, in that parents with less money are more likely to be economically dependent on violent partners, and less able to relocate, hire lawyers, or obtain access to health care, counseling, and other supports.

Moreover, a disproportionate number of parents whose children are placed in foster care, and parents whose parental rights are terminated, are poor;56 in addition, poor families lead far more public lives, and are subject to more pervasive governmental scrutiny, than higher-income families.57 Thus, the problematic effects of state child protection systems on battered parents and their children are intensified for poor families.

The main impetus for the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 was Congressional concern that the AFDC program failed to give poor families incentives to seek employment; encouraged poor, unmarried women to have children; and created a "culture of dependency." Proponents of the legislation argued that it would benefit children by encouraging their parents to seek work and eventually become self-sufficient; discouraging early and unplanned childbearing; promoting responsible parenting (for example, by requiring families on welfare to ensure that their children receive immunizations and attend school); and increasing paternal support and involvement (for example, by requiring welfare recipients to cooperate with child support enforcement efforts, and by eliminating financial disincentives for the formation of two-parent households).

Many advocates and policymakers, however, were concerned about the potential impact of the legislation on domestic violence victims.58 Welfare payments often provide a crucial safety net for parents fleeing domestic violence, and new eligibility restrictions and time limits might force battered parents to remain in or return to violent homes.59 Moreover, requiring welfare recipients immediately to seek work, attend job training, etc. as a condition of receiving benefits would create serious barriers for battered parents who need to obtain restraining orders, move, seek treatment for physical and psychological trauma, or otherwise ensure their and their children's safety before being able to enter the workplace, and who also may be at risk of workplace harassment and violence. In response to these concerns, the "Wellstone/Murray Amendment" to the federal welfare reform legislation creates a "Family Violence Option" that states may enact, to exempt domestic violence victims from work requirements, time limits and other mandated activities and restrictions.

Likewise, provisions requiring welfare recipients to provide information about the fathers of their children, and otherwise to cooperate with child support enforcement efforts, may put domestic violence victims and their children at risk of retaliation from violent ex-partners. For this reason, the child support enforcement cooperation provision in the federal welfare reform law allows states to make a "good cause" exception to the cooperation requirement,60 and includes confidentiality protections.

State Implementation of Welfare Reform

As required both by the federal welfare reform law, and by prior AFDC laws, all states have "good cause" exceptions to the requirement that welfare recipients cooperate with child support enforcement efforts. As of July 1998, 26 states, plus Guam and Puerto Rico, had adopted the Family Violence Option provided in the federal welfare reform law.61 In addition, 18 states, the District of Columbia, and the Virgin Islands have some language addressing domestic violence in their state welfare reform plans, though they did not adopt the Family Violent Option entirely.62 (States that currently have no domestic violence provisions in their welfare reform plans include Kansas, Michigan, Nebraska, New York, Ohio, Oklahoma, and Vermont.63) One of the most generous and comprehensive protections is a recently-enacted Maine law, under which victims of domestic violence face no time limit on receipt of welfare payments and those who would have difficulty participating in Maine's welfare-to-work program are exempt.64

For children to benefit from these provisions, however, domestic violence victims must identify themselves to welfare caseworkers, and caseworkers must find them eligible for the exemptions. Some advocates have pointed out that the AFDC "good cause" exemption was seldom invoked, probably because welfare recipients were not told about it, caseworkers lacked expertise on domestic violence issues, and burdensome standards for proving domestic violence were imposed. Moreover, the exemption, by itself, does nothing to help children and families who do want to receive child support, but need help to ensure their safety from the non-custodial parent.65

Similarly, state laws exempting domestic violence victims from participating in welfare-to-work programs will not truly help victims and their children. Simply allowing victims to stay on welfare may be less harmful than rigidly imposing work requirements and time limits, but this approach does not address these families' long term needs. Therefore, state implementation of the Family Violence Option will benefit children only if it includes services and support to help families protect themselves from future violence, recover from trauma, and take steps towards economic self-sufficiency.

A recent study concludes that, for states to implement the Family Violence Option successfully, they will need to give all welfare applicants and recipients information about domestic violence and about their rights, responsibilities, and options under the welfare reform laws; conduct screening to identify victims of domestic violence; train all caseworkers on domestic violence; develop an integrated service system for domestic-violence victims; have clear and efficient procedures for granting waivers of work requirements, time limits, etc.; and develop flexible welfare-to-work plans for domestic violence victims.66

Children in Immigrant Families

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), passed around the same time as the PRWORA, severely reduced the eligibility of legal immigrants for many public benefits. It does include some special benefits eligibility provisions for battered immigrants,67 but these apply only to those who have a legal status petition pending (either through a spouse or relative, or under VAWA) and who can show a "substantial connection" between the violence and the need for benefits. Moreover, even immigrant parents who urgently need benefits to enable them to escape from violence may hesitate to apply because of the "public charge" doctrine. An application for legal permanent resident status may be denied if the applicant is "likely to become a public charge." Past receipt of government benefits is a factor in making this determination, though it is supposed to take into account the totality of the circumstances and focus on the applicant's future ability to support herself. A history of inconsistency and unfairness in the application of the "public charge" doctrine has left immigrant communities fearful of applying for any public benefits at all.68

The cumulative effect of narrow federal protections for battered immigrant women, cuts in immigrants' eligibility for government benefits, and the "public charge" doctrine are likely to make it difficult for many battered immigrant parents to take steps to protect themselves and their children from future violence. Thus, children in immigrant families affected by domestic violence are an especially vulnerable population.

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Taken together, recent trends and changes in state and federal laws concerning child custody and visitation, protection of children from abuse and neglect, and welfare benefits for low-income families may have a disturbing array of unintended negative effects on children in families where there is domestic violence. Congress and the states have, however, taken some promising steps to address these problems, both through legislation directly addressing domestic violence, and through provisions in child custody and visitation, child abuse/neglect, and welfare reform laws that take account of the impact of domestic violence on children, and the unique problems facing domestic violence victims.

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Martha Matthews is a staff attorney at NCYL. She wishes to thank research assistants Ruth Botstein, Katina Ancar, and Kira Dellinger for their valuable assistance in preparing this article, and Ariella Hyman of San Francisco Neighborhood Legal Assistance Foundation, Tania Broder of the National Immigration Law Center, and Deanna Jang of the Asian-Pacific Islander Women's Health Forum for their helpful comments and corrections. This topic will be addressed further in the author's full-length article that will appear in an upcoming issue of the journal The Future of Children, scheduled for publication in late September 1999 by the David and Lucile Packard Foundation. Visit the journal Web site at www.futureofchildren.org for additional information and to be added to the mailing list. Requests for this journal issue (Summer/Fall 1999) can also be faxed to 650-948-6498.