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Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions
Naomi R. Cahn*
INTRODUCTION ....................................... PROBLEM OF DOMESTIC VIOLENCE .....................
A.
B.
Descriptionof the Problem .....................

Psychology of the Battered Family ..............
1. 2. 3. III.
IV.
Victim s ................................... Abusers ................................. Children .................................
CHILD CUSTODY DECISIONMAKING. ..................... STATE RESPONSE ....................................
1042 1046 1046 1049 1049 1053 1055 1058 1062
V.
Modifications to the Statutory Joint Custody Standard ..................................... 1064 B. Modifications to Best Interest of the Child Statutes ................................. 1068 C. Court Decisions ............................... 1071 1. Courts Dismissing Domestic Violence ....... 1072 2. Courts Influenced by Domestic Violence .... 1074 a. Sole Custody ....................... 1074 b. Joint Custody Decisions ............ 1075 c. Cases in Which One Parent Has Killed the Other ................... 1077 D. Sum m ary ..................................... 1082 OVERCOMING MYTHS ABOUT DOMESTIC VIOLENCE ........ 1082 A. Myths About Domestic Violence ................ 1083 B. Overcoming Myths ............................. 1086
A.
* Copyright 0 1991 by Naomi R. Cahn and Vanderbilt Law Review. Visiting Professor, Georgetown University Law Center; Assistant Director, Sex Discrimination Clinic, Georgetown University Law Center. A.B., Princeton University, 1979; J.D., Columbia University, 1983; LL.M., Georgetown University Law Center, 1989. I thank Tony Gambino, Anne Goldstein, Joan Meier, Susan Deller Ross, and Wendy Williams for their support; and I thank Randi Miller and Alison Micheli for their research assistance.
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1042 VI.
VANDERBILT LAW REVIEW

INTEGRATING DOMESTIC VIOLENCE
[Vol. 44:1041
INTO CHILD CUSTODY
D ECISIONS ..........................................
1087
1089 1090 1092 1093 1094
A. B. C. D. E.
VII.
Recast Assumptions Concerning Fitness of the Natural Parents............................... Admit Evidence of Abuse ...................... Visitation ..................................... Train Judges .................................. Consider Domestic Violence in Custody and Visitation Modifications ...........................
CONCLUSION ...........................................
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I.
INTRODUCTION
The purpose of child custody decisions is to develop an arrangement that is in the best interest of the child by awarding the child to one or both natural parents.' The critical factors in determining the child's best interest are those that have a direct impact on the child and the child's relationships.2 The question of which factors are most relevant to the child's best interest is unsettled,' and the answers that have been developed are "highly contingent social construction[s]." 4 This Article examines one factor that is directly related to children's relationships and well-being, yet is rarely included in custody decisionmaking-domestic violence. 5
1. In custody cases natural parents are generally assumed to be fit, and they have "comprehensive" legal rights. Bartlett, Rethinking Parenthoodas an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879, 884-85 (1984); see also Polikoff, This Child Does Have Two Mothers: Redefining Parenthoodto Meet the Needs of Children in Lesbian-Mother and Other NontraditionalFamilies, 78 GEo. L.J. 459 (1990) (exploring the disadvantages of rigid, traditional definitions of parenthood, which do not recognize the complexity of families because of a strong preference for natural parents). The best interest of the child is the most common formulation of the standard for deciding child custody between natural parents. See infra Part III. 2. For example, in its provision setting out the factors that constitute the best interest of the child, the Uniform Marriage and Divorce Act directs: "The court shall not consider conduct of a proposed custodian that does not affect his [sic] relationship to the child." UNIF. MARRIAGE AND DIVORCE AcT 402, 9A U.L.A. 561 (1973). 3. See, e.g., Fineman, Dominant Discourse, Professional Language, and Legal Change in Child Custody Decisionmaking, 101 HARV. L. REv. 727, 740 (1988) (stating that "[nlo permissible, easily applied guidelines remain under the best interest test"); Mnookin, Child-Custody Adjudication: JudicialFunctions in the Face of Indeterminacy, 39 LAW & CONTEMP. PROBs. 226, 229 (Summer 1975) (stating that "[t]he first theme [in this article] is that the determination of what is 'best' or 'least detrimental' for a particular child is usually indeterminate and speculative"). 4. Bartlett, Re-Expressing Parenthood,98 YALE L.J. 293, 303 (1988). Professor Bartlett also notes that "our judgments about what is best for children are as much the result of political and social judgments about what kind of society we prefer as they are conclusions based upon neutral or scientific data about what is 'best' for children." Id. 5. Domestic violence in this Article refers to the use of physical or psychological force by one adult against another adult with whom there currently exists, or has existed, an intimate relation-
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CIVIL IMAGES OF BATTERED WOMEN
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Surprisingly, the exclusion of parental violence as a factor in custody decisions is relatively new. Prior to approximately 1970 both faultbased divorce and custody decisions focused on the morality of parental conduct. Courts, as well as state legislatures, used "cruelty" as a basis for divorce and child custody awards,' generally granting custody to the parent who had been the subject of the cruelty and denying custody to the parent at fault.7 As the focus in custody decisions has changed from parental rights to the best interest of the child, the relationship between the parents has become increasingly irrelevant. However, state courts and legislatures recently have begun to incorship. "However, this term is most frequently used as a euphemism for wife beating. Most crime reports . . . focus[] on the relationship without specifying the gender of the assailants and victims." Martin, The HistoricalRoots of Domestic Violence, in DOMESTIC VIOLENCE ON TRIAL 3, 3 (D. Sonkin ed. 1987). The National Crime Survey, which collects information on crime independently of police departments, indicates that 91% of all spousal violent crimes reported to it were committed on women by their spouses or ex-spouses. P. KLAUS & M. RAND, FAMILY VIOLENCE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT 4 (1984). Because women are the primary victims, "woman abuse" is another descriptive term. For a broader definition of domestic violence, see Lerman, A Model State Act: Remedies for Domestic Abuse, 21 HARV. J. ON LEGIS. 61, 71-73 (1984), which sets out proposed model legislation defining the actions and requisite intimate relationship required to constitute an act of domestic violence. Battering does not, of course, only occur within heterosexual relationships. See, e.g., Robson, Lavender Bruises: Intra-Lesbian Violence, Law and Lesbian Legal Theory, 20 GOLDEN GATE U.L. REV. 567 (1990); NAMING THE VIOLENCE: SPEAKING OUT ABOUT LESBIAN BATTERING (K. Lobel ed. 1986). The omission of domestic violence as a factor in custody decisionmaking is an example of how custodial mothers "lack a discourse." See Fineman, supra note 3, at 730. Although Professor Fineman focuses on how the rhetoric of social workers has left mothers without a voice to support sole custody, mothers similarly have been prevented from expressing the actual effects of domestic violence on themselves and their children because of a rhetoric of gender equality in the family and because of myths about domestic violence. 6. For example, in California in 1966, approximately 95% of all initial complaints for divorce or separation were filed on the basis of cruelty. Kay, An Appraisal of California'sNo-Fault Divorce Law, 75 CALIF. L. REV. 291, 297 (1987). Despite its prevalence as a ground for divorce, cruelty was not equivalent to one or two beatings, but generally required continued abuse. See, e.g., Scalingi v. Scalingi, 65 N.J. 180, 183, 320 A.2d 475, 477 (1974) (holding that before a 1971 amendment to the divorce statute, extreme cruelty sufficient to justify divorce was "that degree of cruelty, either actually inflicted or reasonably inferred, which endangered the life or health of the aggrieved party, or rendered his or her life one of such extreme discomfort and wretchedness as to incapacitate" the spouse from performing marital duties); Cullotta v. Cullotta, 193 Md. 374, 381, 66 A.2d 919, 922 (1949) (holding that "[o]nly danger to life, limb, or health will constitute . . . cruelty" justifying a divorce); Martin, supra note 5, at 9; but see AREEN, FAMILY LAW 247 (2d ed. 1985) (stating that "the pressure for easier divorce led . . . to increasingly broad judicial interpretations of the available statutory grounds," and that "[tihe result was. . . a liberal [divorce law] in practice that amounted to divorce by consent"). For a discussion of how divorce law reinforced the morality of marital relationships, see Schneider, Moral Discourse and the Transformation of American Family Law, 83 MICH. L. REV. 1803, 1809-10 (1985). 7. E.g., Hawkins v. Hawkins, 219 Ala. 31, 32, 121 So. 92, 92 (1929) (stating that "the father has been adjudged guilty of cruelty to [the mother], and, while this fact is not conclusive of his unfitness for the custody of the child, it is a circumstance to be considered .... "). Marital fault was a critical consideration in custody awards.
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porate domestic violence into custody decisions again.8 The innovative use of domestic violence in child custody decisions and statutes is reminiscent of the fault doctrine used in earlier cases in that it allows parental conduct to affect an award of child custody. On the other hand, these newer determinations are different because they do not focus on the morality of parental fault, 9 but instead are integrated into the prevailing "best interest of the child" decisionmaking standard through analysis of the impact of domestic violence on the child. The emergence of domestic violence as a factor in custody awards reflects increased public awareness of the impact of battering on children.10 Legislatures and courts, however, remain reluctant to require that domestic violence influence child custody. 11 The small number of states that have adopted specific domestic violence provisions in their custody statutes and the method by which courts evaluate evidence of violence clearly demonstrate this reluctance. Moreover, even when courts and legislatures have integrated consideration of domestic violence into custody issues, they have failed to capture the extent to which domestic violence complicates the application of existing child custody standards. When it comes to custody decisions, the law punishes and blames battered women for being battered. In particular, the law tends to require litigants to prove that parental violence has a direct impact on a child, thereby significantly limiting the ways the impact of violence can be considered. Instead, because domestic violence is detrimental to children, no custody decision should be made in the best interest of the
8. For a summary of innovations, see J. PENNINGTON & E. THOMAS, CUSTODY LITIGATION ON BEHALF OF BATTERED WOMEN (1987 & Supp. 1988) (briefly summarizing how different states address domestic violence in custody cases and the applicable psychological literature). See also Note, Domestic Violence and Custody Litigation:The Need for Statutory Reform, 13 HOFSTRA L. REV. 407, 409-10 (1985) (discussing cases and statutes that consider the relationship between custody and domestic violence). 9. Schneider, supra note 6, at 1811; see David M. v. Margaret M., 385 S.E.2d 912 (W. Va. 1989) (reversing a custody award to the father because the lower court had relied on the mother's adulterous conduct, and holding that without evidence that the child was harmed or that the conduct was outrageous, the mother's acts did not call her fitness into question). 10. It also indicates a better understanding of battering. See L.
GORDON, HEROES OF THEIR
OWN LIVEs 2 (1988) (describing one of the typical responses to the widespread nature of child and woman abuse: "[A]s I began to meet former victims and perpetrators, I began to suspect that the boundary separating me from those experiences was by no means invulnerable"). 11. See Fields, Spouse Abuse as a Factor in Custody and Visitation Decisions, in CHILD ABUSE AND NEGLECT 147, 162 (1986) (noting that "the issue of the harmful effect on children from witnessing parental violence has had little impact on our legal system"); see also Germane, Johnson & Lemon, Mandatory Custody Mediation and Joint Custody Orders in California:The Danger for Victims of Domestic Violence, 1 BERKELEY WOMEN'S L.J. 175, 192-93 (1985) (stating that "[jiudges and mediators also may make it clear to a battered woman that the batterer's violence towards her is irrelevant in determining custody and visitation"). 12. See Fineman, supra note 3, at 770 (noting that "legal doctrine cannot adequately address the difficult problems inherent in custody decisionmaking").
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child without first examining evidence of domestic violence. This Article discusses the relationship between domestic violence
and child custody, and critiques the different approaches through which
concerns about domestic violence have been incorporated into child

custody decisions. By examining current approaches, it is possible to develop future approaches that more fully address the problems that spouse abuse presents for children. More fundamentally, it is critical to explore the perceptions of domestic violence that underlie its exclusion from the child custody decision.1 3 Given that the law is not neutral when it regulates families, we must recognize the attitudes that the law expresses and fosters with respect to domestic violence.14 When the law does not allow battered women the opportunity to relate their experiences, it expresses specific attitudes toward domestic violence. The effort to understand the picture of battered women underlying current law is comparatively recent and is critical to fostering legal reform. Part II of this Article briefly surveys the dimensions of the problem of domestic violence and explains the effects of domestic violence on the mother, father, and children. In addition, Part H demonstrates the relevance of domestic violence in custody decisions by explaining several ways in which it negatively affects children's well-being, even when not directed at them. Part II also explains the effects of domestic violence on women's mothering abilities, which courts often criticize in custody decisions without recognizing that the source of the problem is the father's violence. Part III addresses the various formulations of child custody standards and shows how they complicate consideration of domestic violence. Part IV examines different models in statutes and cases which link the two issues, and critiques the various reasons that courts have used to justify consideration of domestic violence. Part V explores the reasons that courts may resist integrating domestic violence into custody decisions, based on perceptions of the nature of victims of domestic violence."5 Part V argues that it is symptomatic of the
13. See Bartlett & Stack, Joint Custody, Feminism and the Dependency Dilemma, 2 BERKELEY WOMEN'S L.J. 9, 28-35 (1986) (arguing that law is expressive of social norms); see also Czapanskiy, Volunteers and Draftees:The Struggle for ParentalEquality, 39 UCLA L. REv. (forthcoming 1991) (positing that law helps to prescribe familial roles); Taub, Thoughts on Living and Moving with the Recurring Divide, 24 GA. L. REv. 965, 972 (1990) (discussing feminist views on the effectiveness of law in achieving social change as played out in debates over custody and support). 14. There is an illuminating discussion on the nature of state intervention in families in Olsen, The Myth of State Intervention in the Family, 18 U. MCH. J.L. REF. 835 (1985). For a discussion of how the language of law affects perceptions of domestic violence, see Minow, Words and the Door to the Land of Change: Law, Language, and Family Violence, 43 VAND. L. REv. 1665 (1990); see also Cahn, Defining Feminist Litigation, 14 HARV. WOMEN's L.J. 1 (1991). 15. Exploration of the perceptions of battered women in civil law lags behind comparable efforts in criminal law, in part because civil laws on domestic violence have arisen from an analysis and criticism of criminal law. Over the past decade, at least in the context of battered women who
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1 6 about myths domestic violence that evidence of abuse is not generally accepted in custody litigation. When courts keep domestic violence out of custody litigation, they negate the effect of domestic violence on the children. This, in turn, reinforces the myth that the violence is aberrational and, thus, the victim's fault.17 Finally, Part VI suggests that state courts and legislatures can address more comprehensively these issues by making parental violence an explicit component when courts, parents, and social workers consider child custody."' As a result, the law will express and promote a different image of battered mothers.
II.
A.
PROBLEM OF DOMESTIC VIOLENCE
Description of the Problem
Intimate battering is the primary cause of violent injury to women. Women are battered more often than they are raped, assaulted, or robbed by strangers.19 More than four thousand women each year are
kill, lawyers generally have succeeded in forcing courts to recognize the problems of these women by developing self-defense law. Advocates are now at the second step, critiquing the perceptions fostered by this self-defense strategy. E.g., Littleton, Women's Experience and the Problem of Transition: Perspectives on Male Battering of Women, 1989 U. CHI. LEGAL F. 23; Schneider, Describingand Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering, 9 WOMEN'S RTs. L. REP. 195 (1986); Note, The Battered Woman Syndrome and SelfDefense: A Legal and EmpiricalDissent, 72 VA. L. REv. 619 (1986) (critiquing the battered woman syndrome as a basis for women's self-defense). In the civil context, lawyers and commentators are still at the first step of pressuring the law to recognize the problems created by domestic violence through encouraging the enactment of domestic violence legislation and are only beginning an accompanying critique of these laws and the images they foster. 16. There are many myths about domestic violence. Among the most common are that domestic violence is a private matter that should stay in the family, that the victim provokes the violence, and that battered women are masochistic. G. GoOLKASIAN, CONFRONTING DOMESTIC VIOLENCE: A GUIDE FOR CRIMINAL JUSTICE AGENCIES 2-4 (1986). These myths are constructed on invidious criteria. See Margulies, "Who Are You To Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C.L. REv. 213, 233 (1990) (discussing perceptions of people with mental disabilities). 17. See Littleton, supra note 15, at 37-38. Littleton critiques the law's picture of battered women, asserting that it characterizes battered women as "alien," "deviant, unusual, perhaps even rare," and blames women for not leaving (rather than men for battering). Id. at 35, 37-38. 18. Given the expressive nature of the law, it is possible that incorporating domestic violence into a child custody decision made when the family separates will influence preseparation behavior. See Bartlett & Stack, supra note 13, at 32-33 (discussing how a joint custody preference could encourage both parents to care for their children, thus reforming parents' roles). 19. Fifty-seven percent of violent crimes against women in 1986 were committed by people they knew. Women, Violence, and the Law: HearingBefore the House Select Comm. on Children, Youth, and Families,100th Cong., 1st Sess. 3 (1987) (statement of Rep. George Miller). More than one million women seek medical help for battering injuries. National Woman Abuse Prevention Project, General Facts About Domestic Violence, Domestic Violence Fact Sheets (1988). For example, in Minnesota it is estimated that there are at least 63,000 incidents of battering per year. Balos & Trotzky, Enforcement of the Domestic Abuse Act in Minnesota: A PreliminaryStudy, 6 L. & INEQUALITY 83, 83 (1988).
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killed by their partners.2 Woman abuse occurs at all socioeconomic levels, 21 and researchers believe that it is among the most underre2 Once a woman is victimized, there is at least a ported of crimes. thirty-two percent chance that she will be battered again in the next six 2" Battering often begins or becomes months. more acute when a woman 24 becomes pregnant. Researchers have only recently begun to explore the sociological and psychological dimensions of the domestic violence problem. Until twenty years ago, woman abuse was neither publicly studied nor acknowledged.2 5 It occurred, but with little state interference or regula8 Battered women received no tion. 2 support from social services
20. Morella, Keep Wife-Beaters Away from the Kids; Why do Courts Give them Custody?, Wash. Post, Dec. 9, 1990, at K5.
21. ATTORNEY GENERAL'S TASK FORCE ON FAMILY VIOLENCE, FINAL REPORT 11 (1984). The happens to people of all racial, economic, and religious groups.
National Woman Abuse Prevention Project (NWAPP) reports:

Domestic violence ....
For example, police in the mostly white, upper-class Washington, D.C. suburb of Montgomery County, Maryland received as many domestic disturbance calls as were received in the same period in Harlem, New York City. However, low-income battered women are more likely to seek assistance from public agencies, such as shelters and hospital emergency rooms, because they have fewer private resources than middle- and upper-income women. They are therefore more likely to be counted in official reporting statistics. NWAPP, Answers to Some Commonly Asked Questions about Domestic Violence, Domestic Violence Fact Sheets. Notwithstanding this evidence, students in my classes have questioned whether people other than black women are battered.
22. E.g., G. GOOLKASIAN, supra note 16, at 5.
23. P. LANGAN & C. INNES, PREVENTING DOMESTIC VIOLENCE AGAINST WOMEN (1986). Because this statistic is based on self-reporting, it is probably much lower than the actual occurrence rate. 24. L. WALKER, THE BATTERED WOMAN 105-06 (1979); S. Jackson, Who's Crazy Here? Battered Woman's Syndrome and Male Violence, 54-55 (1988) (unpublished manuscript). In many of the cases at the clinic where I work, battering is particularly severe while the woman is pregnant. In a study of ten severely battered women, Ann Rasmussen reported that all eight women with children recounted that they were battered during their pregnancies. A. Rasmussen, Chronically and Severely Battered Women: A Psychodiagnostic Investigation 139 (table 8) (Oct. 1988) (unpublished manuscript).
25. See S. SCHECTER, WOMEN AND MALE VIOLENCE 11-27 (1982) (discussing the "socially in-
duced silence" about battering). But see L. GORDON, supra note 10. Linda Gordon studied case records of social service agencies for child protection in Boston between 1880 and 1960. Her premise is that family violence is a problem inseparable from the family norms of a whole society . .. Born as a social problem in an era of a powerful women's rights movement, the 1870s, campaigns against child abuse and wife-beating have tended to lose momentum and support, even to disappear altogether, when feminist influence is in decline. Id. at 26. Gordon states that there had never been a major campaign against woman abuse, but that woman abuse was addressed indirectly through protection against cruelty to children. Id. at 252-53. See also E. PLECK, DOMESTIC TYRANNY (1987) (discussing family cruelty prior to the twentieth century). 26. See Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. Rsv. 1497, 1510 (1983) (stating that "the assertion that family affairs should be private has been made by men to prevent women and children from using state power to improve the conditions of their lives," and using woman abuse as an example of this situation).
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providers, and they usually did not leave their homes because there 7 Prior to 1975 psychologists did not study the probwere no shelters.1 lem of the battered woman as a victim,2" although sociologists and
2 9 others had begun to document the phenomenon earlier. The few laws
that existed to protect battered women were rarely enforced.30 Then, in the mid-1970s, primarily as a result of the women's movement, battered women began to speak out about the abuse they had experienced.3 ' The number of shelters for battered women grew from zero in 1970 to more than seven hundred in 1987.2 A battered women's movement advocated changes in the civil and criminal laws.3 3 States be34 gan to enact legislation providing injunctive relief to victims of abuse. Although the remedies in the early legislation were limited, after some experience with the laws, legislators changed many of them to expand 3 5 Until 1976 only two states and the District of Cothe scope of relief. lumbia had special civil legislation for battered women; eleven years later, all but two states had enacted some form of civil relief for victims of battering. 6 Of these, forty-one allow women to obtain temporary
27. 28. S. SCHECTER, supra note 25, at 56. L. WALKER, supra note 24, at xi. A. BROWNE, WHEN BATTERED WOMEN KILL 3 (1987).
29. 30. Note, The Case for Legal Remedies for Abused Women, 6 N.Y.U. REv. L. & Soc. CHANGE
135, 160 (1977). 31. S. SCHECHTER, supra note 25, ch. 3.
32. NOW LEGAL DEFENSE AND EDUCATION FUND GUIDE TO WOMEN'S LEGAL RIGHTS 33 (1987). 33. S. SCHECTER, supra note 25, ch. 7.
& R. CHEROW-O'LEARY, THE STATE-BY-STATE
34. Id. at 161-64. 35. Lerman, supra note 5, at 63. 36. Finn, Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Abuse, 23 FAM. L.Q. 43, 43 (1989). Problems remain, however, with enforcement of these orders. See Brown, Battered Women and the Temporary Restraining Order, 10 WOMEN'S RTs. L. REP. 261 (1988) (arguing that enforcement of restraining orders is critical to their effectiveness). Relatively few jurisdictions have made violation of a civil protection order an offense for which arrest is mandatory. See Note, Mandatory Arrest for Domestic Violence, 11 HAv. WOMEN'S L.J. 213, 214 n.9 (1988). When battered women call the police, the police often do not respond. For d dramatic example of how the police may respond when they do arrive, see Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984). Police officers stood by as Tracey Thurman was attacked by her husband; he kicked her in the head, dropped their son on her, kicked her again, and was about to approach her again when the police finally apprehended him. Id. at 1525-26. There have been numerous equal protection claims against municipalities and police departments based on their failure to respond to domestic violence. See, e.g., Watson v. City of Kansas City, 857 F.2d 690 (10th Cir. 1988). An in-depth survey of how the Washington, D.C., police implemented their policy to arrest in domestic situations found an arrest rate of five percent, and a series of horror stories about the police response. K. Baker, N. Cahn & S. Sands, Report on District of Columbia Police Response to Domestic Violence (D.C. Coalition Against Domestic Violence & The Women's Law & Public Policy Fellowship Program 1989) (unpublished manuscript). Prosecutors do not prosecute, and judges do not impose meaningful sanctions. See Comment, Gender Based Discriminationin Police Reluctance to Respond to Domestic Assault Complaints, 75 GEo. LA. 667, 672 (1986); Meier, Battered Justice, WASHINGTON MONTHLY, May 1987, at 37.
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custody of their children through a civil order of protection., Others allow visitation conditions to be set in order to protect the domestic violence victim.38
Before examining the legal relationship between custody and domestic violence, it is necessary to explore the psychological and social relationships between child custody and domestic violence. The next subparts discuss why battering occurs, the psychology of the victim and the batterer, and the impact of violence on children and their parents' parenting skills. B. Psychology of the Battered Family 1. Victims
There is, of course, no simple answer to explain why men batter and why women stay with their batterers. Early twentieth century theories posited that women secretly enjoyed the beatings they received because masochism was critical to the psychology of normal women.3 9 More recent theories reject masochism as an explanation for why women tolerate abuse, suggesting instead a complex set of factors, including the severity of abuse and the unavailability of external resources to help women leave their abusers. 0 Three significant theories attempt to explain why women do not leave. These theories examine: (1) social and economic forces that are external to the woman; (2) developmental problems that predispose the woman to accept battering (such as their own abuse as children); and
In some areas the criminal justice system has begun to change during the past 15 years. See, e.g., Waits, The Criminal Justice System's Response to Battering: Understanding the Problem, Forging the Solutions, 60 WASH. L. REV. 267, 268 (1985). See also L. LERMAN, PROSECUTION OF SPOUSE ABUSE: INNOVATIONS IN CRIMINAL JUSTICE RESPONSE 2 (1981) (observing that the criminal justice response is in need of improvement, but that prosecutors have begun to develop improved procedures for domestic violence cases). Prosecutors have begun to adopt no-drop policies requiring women to cooperate in pursuing criminal charges based on the abuse. Even as the criminal justice system changes, however, police, prosecutors, and judges may choose not to implement the new mandate. See, e.g., K. Baker, N. Cahn & S. Sands, supra. 37. Finn, supra note 36, at 62-63 (table 1). Forty states and the District of Columbia authorize temporary custody. 38. For example, D.C. CODE ANN. 16-1005(c)(7) (1989) allows a court to provide "for visitation rights with appropriate restrictions to protect the safety of the complainant." MINN. STAT. ANN. 518B.01 subd. 6(a)(3) (West Supp. 1991) provides that the court can restrict visitation if the safety of the mother or children would be jeopardized by unrestricted visitation. 39. E. PLECK, supra note 25, at 158-59 (discussing the influential theories of Helene Deutsch, which are based on the Freudian theory of penis envy). 40. E.g., Hilberman, Overview: The "Wife-Beater's Wife" Reconsidered,in THE GENDER GAP
IN PSYCHOTHERAPY
TIM, THIEF
213, 227 (1984); see Klein, The Dark Side of Marriage,in
JUDGE, LAWYER, VIc-
83 (1982) (discussing battering as an extension of the marital power imbalance that is an integral part of a capitalist patriarchy).
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(3) the psychopathology of the individual victim.4 1 The currently dominant theory suggests that developmental disabilities prevent women from leaving the abuse; women become caught in a cycle characterized by learned helplessness. 2 Because this theory, developed by Lenore Walker, has influenced the law's view of battered 3 it must be examined in detail." women, 4 The theory postulates three phases to the battering cycle: a tension-building phase, an acute battering incident, and a loving contrition phase.' 5 During the tension-building phase, there are minor incidents of battering, but the woman attempts to preserve the calm by placating the batterer.46 Nonetheless, tension grows until it escalates into the second stage, the acute, battering incident. The "incident" can last from two hours to a full day, or even longer.'7 Women who anticipate the acute battering incident may even trigger its occurrence to defuse the tension. 4s After the acute battering, the batterer becomes contrite, loving, and calm. 4'9 He may, for example, send flowers to the woman if she has been hospitalized as a result of his violence, take the blame for the battering incident, and tell her that he loves her and needs her.5 0 The victim, who may have been ready to leave the batterer after the incident, believes him and gives him a second chance, hoping that he will change. A new tension-building process begins, however, and the cycle then repeats itself. As a result of this cycle, the woman starts to believe that she has no control over the batterer's actions; she begins to think that she cannot stop the violence and that she cannot escape from it.51 She has learned her own helplessness. Although this theory explains the situation of some women, contradictory data from Dr. Walker's own subjects fail to support the learned helplessness theory as applied to all women. First, many battered
41. A. Rasmussen, supra note 24, at 20, 24.
42. L. WALKER, THE BATTERED WOMAN SYNDROME (1984); L. WALKER, supra note 24.
43. E.g., State v. Kelly, 97 N.J. 178, 190-97, 478 A.2d 364, 369-73 (1984); Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979); Note, supra note 15, at 636. 44. See Fineman & Opie, The Uses of Social Science Data in Legal Policymaking: Custody Determinations at Divorce, 1987 Wis. L. REv. 107, 126-31, 140 (discussing the dangers, such as bias, methodological problems, and generalizing from the limited to the universal, involved when social science research is used as the basis for legal rules). 45. L. WALKER, supra note 42, at 95; L. WALKER, supra note 24, at 55. 46. L. WALKER, supra note 24, at 56-59. As the tension during this phase increases, equilibrium becomes harder for each person to maintain. 47. Id. at 60. 48. Id. 49. Id. at 65-70. It is during this phase that the woman is most likely to leave. 50. Id. at 65-67. 51. Id. at 49-50.
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women do not act completely, helpless.2 They frequently call the police."3 Although they may accept the inevitability of a battering incident, they know that they can provoke it to get it over with. And during the battering, they protect themselves and their children. Moreover, as the violence increases, women are more likely to seek help.5 Second, there are flaws in Dr. Walker's research design and compilation of re5 5 For example, although she postulates a three-stage pattern, she sults. presents data separately on the percentage of women who experience each phase of her three-cycle theory; consequently, "it is likely that only about thirty-eight percent of the women actually experienced the entire cycle."5 6 Despite its flaws, the learned helplessness theory presents key factors explaining why some women remain in the battering relationship. Two other theories, however, also explain why battered women do not leave. One theory focuses on the strong social and economic factors that discourage women from leaving the abuser.5 7 Nationwide, there are only twelve hundred shelters for the more than two million women who are battered each year. 8 Moreover, battered women may not want to leave an abusive situation without taking their children. Unfortunately, many shelters do not accept women with children. At the same time, courts penalize women who leave the batterer but do not take along their children.59 Family and friends often refuse to accept the existence of the violence. Thus, the battered woman may have no place to go and no support structure to which she can turn. With little outside support for leaving the batterer-and, indeed, often facing condemnation if she abandons her abuser-the battered woman stays in the abusive relationship. While this theory partially explains why battering continues, it does not clarify why some women do leave, or, for that matter, why battering starts.
52. See S. Jackson, supra note 24, at 33-35. 53. The police in Washington, D.C., reported receiving more than 19,000 calls in domestic violence situations during 1986. K. Baker, N. Cahn & S. Sands, supra note 36, at 54. At most, the police arrested only 42 people as a result of these phone calls.
54. L. WALKER, supra note 42, at 26; E. GONDOLF & E. FISHER, BATTERED WOMEN AS SURVIVORS: AN ALTERNATIVE TO TREATING LEARNED HELPLESSNESS 17-22 (1988). Gondolf and Fisher suggest that women have a strong survival instinct that expresses itself in nurturing and care. 55. Note, supra note 15, at 637. 56. Id. at 640. In the interviews she used to support her theory, Dr. Walker structured questions or characterized answers to fit her preexisting explanations. Id. at 637-38. 57. Chris Littleton argues that the "intolerable conditions under which women live" should be the focus of understanding battered women. Littleton, supra note 15, at 42. 58. 135 CONG. REc. E2593 (daily ed. July 20, 1989) (statement of Rep. George Miller). The demand is far greater than the supply. 59. See infra notes 162 & 271 and accompanying text (discussing "abandoning spouse" provisions).
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A third theory focuses on evidence that the psychopathology of individual women may cause them to stay in abusive relationships. Under this theory a battered woman's background of childhood abuse, for example, may make her likely to seek, and to remain in, an abusive relationship.6 0 She may have a borderline personality."' In her study of ten battered women, Ann Rasmussen found that her "subjects suffer from substantial psychopathology.. . . [I]n assigning them a 'point' on the continuum of psychopathology, the subjects were closer to psychotic in their reality testing, but closer to neurotic in ego strengths." 2 Consequently, these women may psychologically need the abuse they experience in their intimate relationships. This theory is somewhat problematic. It appears to blame the victim and ignores the psychological effects of both the male's abusive behavior and the woman's socioeconomic position. On the other hand, ignoring the woman's situation and feelings denies her personal reality. It should be possible, to develop a theory that describes battering as the relationship between socioeconomic factors and the woman's psyche without denying the victim the help and support that she needs. Viewing the woman as the helpless victim ignores her strength; blaming her for staying not only ignores the sociological background of her situation, but also excuses the abuser for his actions. In contrast, a full picture of the victim considers the sociological reasons that she might stay in a relationship, her own psychology, and the effects of battering on her perceptions of self-worth and her mothering abilities.6 3
60. See A. Rasmussen, supra note 24, at 208-26 (study of extreme subgroup of battered women). This appears to be the prevailing view in Britain. Stark & Flitcraft, Social Knowledge, Benevolence, in THE DARK Social Policy, and the Abuse of Women: The Case Against Patriarchal SIDE OF FAMILES: CURRENT FAMILY VIOLENCE RESEARCH 330, 337, 344-45 (1983). 61. Gillman, An Object-Relations Approach to the Phenomenon and Treatment of Battered Women, 43 PSYCHIATRY 346 (1980). Borderline personality disorder is characterized by "a pervasive pattern of instability of selfimage, interpersonal relationships, and mood." This instability may manifest itself in uncertainty about one's identity, life choices, and values in unstable and intense relationships and in "inappropriately intense anger or lack of control of [one's] anger." AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3d ed. rev. 1987). 62. A. Rasmussen, supra note 24, at 208, 214. 63. Mothers are frequently blamed by child abuse workers for failing to protect their children. Often, however, the mothers are unable to stop or control the violence against themselves or their families. L. WALKER, supra note 42, at 149. See also In re Betty J.W., 371 S.E.2d 326 (W. Va. 1988) (child abuse petition alleged that mother failed to protect children from her husband's abuse; court reversed termination of mother's parental rights, finding that mother had tried to stop abuse and that she should be given time to overcome effects of battered woman's syndrome on her mothering). For an exploration of mother-blaming and its manifestations throughout psy-
chological explanations of the etiology of children's disorders, see P. CAPLAN,
DON'T BLAME MOTHER
(1989). The Joel Steinberg and Hedda Nussbaum case, in which a child was so severely abused that she died, dramatizes the effects of battering on mothering. Hedda Nussbaum was a battered wo-
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CIVIL IMAGES OF BATTERED WOMEN 2. Abusers
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There has been comparatively less research on men who batter than on their victims. " Moreover, much of the information about vio6 5 Historically, it was believed that lent men comes from their partners. men battered because of uncontrollable sexual urges or drunkenness.66 Today, researchers agree that there is no one reason that men batter, just as there is not one type of batterer 6 7 The behavior of batterers ranges from sociopathic-where the batterer is highly abusive to his wife and children and likely to be violent outside of the family-to spo6 " While it is difficult to generalize radic, where the abuse is "minimal." about batterers, they frequently exhibit characteristics such as extreme jealousy of the victim's contacts with friends, family members, and neighbors, and an addiction to the battering relationship. 9 The violence appears to become more frequent and severe over time. In many relationships, the violence increases after separation, and the abuser will try to retaliate against the victim for leaving.7
man and was too scared to protect her adopted daughter. Clifford, Hedda Weeps as She Recalls Lisa's Death; Testifies Joel Vowed to Heal Her, Newsday, Dec. 2, 1988, at 5. While Ms. Nussbaum's situation resulted in a dichotomized public response, in which some people blamed her for the girl's death and others excused her, her actions show clearly how abuse can render a mother dysfunctional. As Judith Herman has commented in the context of incestThese cases represent an extreme failure of maternal protectiveness. How is one to account for them? The answer lies in an analysis of the mother's position in the family. Mothers who are strong, healthy, and competent do not tolerate incest. But mothers who have been rendered unusually powerless within their families, for whatever reasons, often tolerate many forms of abuse, including sexual abuse of their children. Herman, Father-Daughter Incest (1981), in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES 367, 371 (B. Nicholson ed. 1988). For additional discussion of mothers who batter their children, see infra notes 92-94 and accompanying text. 64. One explanation is that society better understands why men use violence than why women endure battering. 65. Frieze & Browne, Violence in Marriage,in FAMILY VIOLENCE 163, 183 (1989). The authors comment that although more research on abusive men is needed, there are practical difficulties in finding these men. Id. at 207. 66. Id. at 49-66; L. GORDON, supra note 10, at 264-65. 67. Gondolf, Anger and Oppression in Men who Batter: Empiricist and Feminist Perspectives and their Implications for Research, 10 VICTIMOLOGY 311 (1985). 68. E. GONDOLF & E. FISHER, supra note 54, at 65-66. The authors conducted a survey of all women who entered 50 Texas shelters during an 18-month period in 1984-85. They developed a typology of batterers based on interviews of the women. Between the sociopathic and psychopathic batterers, they found the antisocial batterer, who is less abusive than the sociopath but still abusive both within and outside of his family, and the chronic batterer, who resembles the sociopath but is less likely to use weapons. 69. See S. Jackson, supra note 24, at 54-62. 70. L. WALKER, supra note 42, at 148; Frieze & Browne, supra note 65, at 184. 71. Frieze & Browne, supra note 65, at 207. Martha Mahoney has shown how the concept of "separation assault," which refers to the dangerous attacks on women who attempt to leave their abusers, is critical in understanding battering. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH.L. REV. (forthcoming Oct. 1991).
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A continuum of theories explains why men batter. At one end are theories that focus on the individual abuser, and at the other end are theories that focus on a patriarchal society. According to the "empiricist" perspective, a man's anger at his partner is the basis for violence. Research often depicts batterers as immature and excessively possessive and jealous. Indeed, men frequently explain that they batter their mates because they lose control, often as a result of alcohol or drug
abuse, or because their victims provoke them. 73 Alternatively, by mini-
mizing the injuries they have inflicted, abusers may deny that their behavior was wrong.74 Treatment under this model emphasizes a supportive environment in which a batterer can learn to express his feelings and develop better interpersonal skills.h According to the feminist perspective, a male-dominated society causes the violence. 76 This theory holds that both society's expectation of male domination of women and its tolerance of violence against women help perpetuate battering.7 7 Batterers learn how to use violence and power through their individual experiences, their families, and society.78 Under this model batterers can best be treated if they learn that battering is a crime and that they have no right to control their partner's behavior. 79 The feminist theory cautions that a treatment ap72. A. Rasmussen, supra note 24, at 18 (asserting that the description of batterers is "remarkably consistent" throughout different studies, and that triggers for battering incidents are arbitrary or petty).
73. Ptacek, Why Do Men Batter Their Wives?, in
FEMINIST PERSPECTNES ON WIFE ABUSE
133, 142-45 (1988). Ptacek conducted in-depth interviews of 18 men recruited through an organization that provides counseling to abusive men. He found that loss of control was the most common excuse used by batterers to explain their behavior. See Hilberman, supra note 40, at 219 (studies showing correlation between alcohol use and violence). 74. Ptacek, supra note 73, at 145-46. 75. See, e.g., Pence & Shepard, Integrating Feminist Theory and Practice:The Challenge of ,the Battered Women's Movement, in FEMINIST PERSPECTIVES ON WIFE ABUSE, supra note 73, at 282, 284. For a general discussion of treatment of male batterers, which includes underlying theories, see Adams, Treatment Models of Men who Batter: A ProfeministAnalysis, in FEMINIST PERSPECTIVES ON WIFE ABUSE, supra note 73, at 176. 76. Gondolf, supra note 67. A feminist perspective on batterers emphasizes that "[e]ven if individual men refrain from employing physical force against their partners, men as a class benefit from how women's lives are restricted and limited because of their fear of violence by husbands and lovers as well as by strangers." Bograd, Feminist Perspectives on Wife Abuse: An Introduction, in FEMINIST PERSPECTIVES ON WIFE ABUSE, supra note 73, at 11, 14. 77. G. GOOLKASIAN, supra note 16, at 105. For a discussion of the pervasiveness of violence against women and the precautions that women take, see, for example, Stone, Victim or Not, Pattern of Life Often Altered, USA Today, July 18, 1990, at 1A. 78. Ganley, Perpetratorsof Domestic Violence: An Overview of Counseling the Court-Mandated Client, in DOMESTIC VIOLENCE ON TRIAL, supra note 5, at 155, 158. 79. Pence & Shepard, supra note 75, at 285, 286-90. The authors describe the batterer intervention program developed pursuant to the Duluth, Minnesota, Domestic Abuse Intervention Project, which has been used repeatedly as a model for other projects.
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proach that addresses the batterer's personal characteristics does not address the underlying issue: domestic violence is a crime through 80 which the batterer attempts to control his partner. Perhaps a combination of the empiricist and feminist theories offers the best explanation for why men batter. Battering is a product of personal anger and tolerance from a patriarchal society for the resultant behavior. Not all men who get angry are batterers, and much of male anger is a function of society's expectations of male prerogatives. The treatment approach that embraces both theories would address cultural issues of male dominance and individual interpersonal skills, forcing the abuser to take responsibility for his behavior. 3. Children
Although they are the third parties within the family relationship, children are, like battered women, victims. Abuse affects children cognitively, emotionally, and physically.8 1 While research on the effect of domestic violence on children is still comparatively new, several themes have emerged. 2 First, children of these relationships appear more likely to experience physical harm from both parents than children of rela8 Second, even if they are not physitionships without woman abuse. cally harmed, children suffer enormously from simply witnessing the violence between their parents.8 4 Seeing one parent attack another trau80. 81. See Mahoney, supra note 71. L. WALKER, supra note 42, at 149. Dr. Walker found that 87% of mothers believed that
their children were aware of the violence. Id. at 59.

While, in theory, there are three categories of children in households with domestic vio-
lence-children who are abused themselves, children who witness the violence, and children who neither witness the violence nor are abused-the last category probably includes an insignificant number of children, given the high percentage of mothers who believe that their children knew of the violence. 82. Researchers have conducted various studies showing the impact of spousal abuse on children. See infra subpart H(B)(3). There are, however, several problems with absolute reliance on
these studies. First, most of the studies of children are based on very small samples, usually of
fewer than 50 children. Second, "[t]he results of studies designed to ascertain the welfare of children are rarely, if ever, conclusive. Moreover, they take place in a political and social context which affects both an assessment of the evidence and what we might say about the primacy of the child's best interests." Bartlett & Stack, supra note 13, at 11; see also Fineman & Opie, supra note 44 (containing further analysis of the use and misuse of social science research in custody decisions); Fineman, A Reply to David Chambers, 1987 Wis. L. REv. 165, 165 (noting that "social science information is being used in the debate over custody rules without being subjected to any really critical examination and without being put in the context of the forces producing and urging changes in the area"). For a qualified defense of the usefulness of social science data and an interesting, though biased and paternalistic, standard for its use, see Faigman, To Have and Have Not: Assessing the Value of Social Science to the Law as Science and Policy, 38 EMORY L.J. 1005 (1989). 83. See infra notes 92-94 and accompanying text. 84. J. WALLERSTEIN & S. BLAKESLEE, SECOND CHANCES 121 (1989). The authors report that
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matizes children. 5 Because children learn from their parents, they may ultimately imitate the abuser's behavior toward their mother86 or replicate the pattern of violence in their own relationships." Third, children of abusive fathers are likely to be physically abused 8 One study found that child abuse was present in seventy themselves.1 percent of the families in which there was spouse abuse. 9 The same study reported that the more severe the spouse abuse, the more severe the child abuse.90 In another study, researchers found that children of mothers who had been battered were twice as likely to be abused themselves than were children of mothers who had not been battered.9 Moreover, children in these families may be abused by both parents.2 One study found that women who are abused are twice as likely
even if there is only one violent incident, children will remember it. In the film Agents of Change, a young boy at a battered women's shelter is asked what characterizes a happy marriage and, after several painful seconds, he replies he does not know. Agents of Change (Victim Services Agency 1988). 85. See infra notes 95-96 and accompanying text. 86. Rosenbaum & O'Leary, Children: The Unintended Victims of Marital Violence, 51 AM.
J. ORTHOPSYCHIATRY 692, 693 (1981) (noting that "[c]linical reports often point to the tendency of
male children of abused women to act out aggressively, frequently directing their aggression toward the mother"). 87. A. Rasmussen, supra note 24, at 13. 88. Rosenbaum & O'Leary, supra note 86, at 698. 89. Bowker, Arbitell & McFerron, On the Relationship Between Wife Beating and Child
Abuse, in FEMINIST PERSPECTIVES ON WIFE ABUSE, supra note 73, at 158, 162. Their study involved
1000 battered women, with in-depth interviews of 146 women and written questionnaires from another 854. Other studies show lower rates; in one sample of 306 mothers, 109 said the abuser beat their children as well. Pagelow, Children in Violent Families:Direct and Indirect Victims, in YOUNG CHILDREN AND THEIR FAmmms 47, 55-56 (1982). 90. Bowker, Arbitell & McFerron, supra note 89, at 164. 91. Stark & Flitcraft, Woman-Battering, Child Abuse and Social Heredity: What is the Relationship?, in MARrAL VIOLENCE 147, 165 (N. Johnson ed. 1985) (study of the 116 mothers of all children who had been referred to a special hospital committee because of suspected abuse or neglect during a one-year period). The authors found that "[c]hildren whose mothers are battered are more than twice as likely to be physically abused than children whose mothers are not battered and the father is the typical abuser of the child if the mother is battered." Id. at 165-66. See McKibben, De Vos & Newberger, Victimization of Mothers of Abused Children: A Controlled Study, 84 PEDIATRICS 531, 533 (1989) (a 1986 study of mothers of 32 abused children found 59.4% were likely to be victims of violence themselves, in comparison to 12.5% of mothers in a control group). 92. E.g., A. Rasmussen, supra note 24, at 200 (table 16) (reporting that 75% of the children were physically abused by their father, 25% were sexually abused by him, and 63% were physically abused by the mother). In their study of 116 cases of child abuse, however, Stark and Flitcraft found that in families in which there is a battered mother, the father "is more than three times more likely to be the child's abuser than in families of nonbattered mothers." Stark & Flitcraft, Women and Children at Risk: A Feminist Perspective on Child Abuse, 18 INT'L J. HEALTH SERV. 97, 106 (1988). For an analysis of the ethical issues confronted by a lawyer who represents an abusive mother seeking custody, see Calm, A Preliminary Feminist Critique of Legal Ethics, 4 GEO. J. LEGAL
ETHICS 23 (1990).
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to abuse their children as women who are not abused.93 Yet another study found that, while abuse toward children generally decreased when battered women left their abusers, most of this change resulted from a decrease in child battering by the father, not by the mother.94 Apart from possible physical abuse, children who witness abuse of their mothers are at risk for behavioral and other psychological problems. In one experimental study comparing children of battering relationships who had witnessed violence but who had not themselves been subject to abuse to a control group of children who had neither witnessed nor been subject to abuse, researchers found that the children of the battering relationship showed more aggression, exhibited impaired cognitive and motor abilities, and were delayed in verbal development.9 5 Other studies further confirm that parental violence has negative behavioral and emotional effects on children who witness it96
93. M. STRAUS, R. GELLES & S. STEINMETz, BEHIND CLOSED DOORS: VIOLENCE IN THE AMERICAN FAMmY 216-17 (1980).
Lenore Walker found that women were eight times more likely to abuse children when they themselves were being battered than when they were not in battering relationships. L. WALKER, supra note 42, at 60. She also found that 53% of men who abused their mates also abused their children, while 28% of the women who were abused did so. Id. at 59. 94. Giles-Sims, A Longitudinal Study of Battered Children of Battered Wives, 34 FAM. REL. 205 (1985). The author hypothesizes that one factor causing battered women who batter their children to continue the abuse after leaving their abusers is the stress from beginning a new lifestyle, and suggests that the women need therapy to help them with alternative disciplinary methods, and that they also need follow-up services when they leave shelters. Id. at 210. Maternal abuse is a serious problem; however, studies have found that paternal abuse results in more serious injuries. E.g., Stark & Flitcraft, supra note 92, at 99. In response to the problem of abusive mothers, many shelters have established treatment groups for mothers and children. Id. at 115. Moreover, paternal abuse may start while the mother is pregnant and may result either in a miscarriage or in damage to the child once she is born. R. GELLES, FAMILY VIOLENCE 130-31 (2d ed. 1987). Given that the father's abuse may be more harmful to the child and that the mother probably has been the primary caretaking parent, treatments that help the mother appear to provide the best alternative for the child. Stark & Flitcraft, supra note 91, at 168. 95. Westra & Martin, Children of Battered Women, 10 MATERNAL-CHILDNURSING J. 41 (1981). The small sample included only 20 children. 96. E.g., Jaffe, Wolfe, Wilson & Zak, Similarities in Behavioral and Social Maladjustment Among Child Victims and Witnesses to Family Violence, 56 AM. J. ORTHOPSYCHIATRY 142 (1986). In this study researchers compared boys from violent families who had been abused themselves with both boys from violent families who had not been abused but who had witnessed the violence, and boys from nonviolent families. The researchers found that the witness group had behavioral problems that resembled those of the abused children and that were statistically different from the control group children. Id. at 145. The authors noted that while family violence appears to explain the study's result, other variables, such as family stress, may also explain the results. Id. See also Hershorn & Rosenbaum, Children of Marital Violence: A Closer Look at the Unintended Victims, 55 AM. J. ORTHOPSYCHATRY 260 (1985) (finding similar results in a study that compared only the male children of three groups of women: 15 women who were victims of physical violence, 12 women who had discordant marital relationships, and 18 women who were satisfactorily married); Goodman & Rosenberg, The Child Witness to Family Violence: Clinical and Legal Considerations, in DOMESTIC VIOLENCE ON TRm, supra note 5, at 97, 104 (concluding that the research suggests children are at risk for many psychological problems, including feeling worthless and act-
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Moreover, family violence appears to have intergenerational effects; children of violent fathers are more likely to be violent themselves.9 7 In one study almost half of the children from abusive families repeated the pattern, becoming abusive in their own intimate relationships in early adulthood.9 8 Thus, for children who live with a batterer, the continuing pattern of violence reinforces the lesson that violence is acceptable and puts them at risk for becoming abusers."
In most families today the mother still nurtures the children. Because of a history of abuse, however, a battered mother often can be manipulated into relinquishing custody when the parents separate. Nonetheless, given the consequences of domestic violence on children, woman abuse 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. The legal system must treat domestic violence as a family disorder, not as an individual woman's problem.
III. CHILD CUSTODY DECISIONMAKING
In virtually all states, child custody decisions require, first, a determination of the fitness of both natural parents, 0 0 and second, determiing aggressively). Children who are themselves abused appear to experience more behavioral and adjustment problems than children who only witness family violence. See Hughes, Psychological and Behavioral Correlates of Family Violence in Child Witnesses and Victims, 58 AM. J. ORTHOPSYCHIATRY 77 (1988); see also Pfouts, Schopler & Henley, Forgotten Victims of Family Violence, SocIAL WORK 367, 368 (July 1982). 97. E.g., Public Hearing on HB 1781, Before the Pennsylvania House Committee on Youth and Aging, 1989 Sess. (statement of Judy Yupcavage of the Pennsylvania Coalition Against Domestic Violence) [hereinafter Yupcavage Statement]. Ms. Yupcavage compiled statistics on the relationship between domestic violence and child abuse, finding, among other items, that the only significant risk factor predicting whether boys will batter when they grow up is whether their fathers battered. 98. J. WALLERSTEIN & S. BLAKESLEE, supra note 84, at 121. On the other hand, "[wihile boys experiencing violence as children are disproportionately violent as adults, 90 percent of all children from violent homes and even 80 percent from homes described as 'most violent' do not abuse their wives." Stark & Flitcraft, supra note 92, at 100. See R. GELLE S & MvL STAUS, INTIMATE VIOLENCE 121-22 (1988) (noting that although the claim of a strong, intergenerational transmission of violence is controversial, "past history is important enough as a causal factor to warrant explanation and clinical intervention"). 99. In addition to potential physical abuse from the batterer, the father may also use the children in a postseparation family to continue to abuse and harass the mother. See infra notes 286-89 and accompanying text. 100. Absent extraordinary circumstances, courts presume that both natural parents are fit. E.g., Bartlett, supra note 1. When parents are fighting each other for custody, this first step is generally collapsed into the second step, which is determining what is in the best interest of the
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nation of a custody arrangement that is in the best interest of the child. 01 The standard is phrased in gender-neutral terms, reflecting both feminist goals of nondiscriminatory custody determination 0 2 and father's rights groups' goals of paternal equality.103 Generally, best interest of the child statutes also list factors the court is to consider in 04 Some states express the interest of the making its custody decision.1
child. But see Comment, Assessing Children's Best Interests when a Parent is Gay or Lesbian: Toward a Rational Custody Standard, 32 UCLA L. Rav. 852, 864 (1985) (stating that "when a court tacitly or overtly assumes that a gay or lesbian parent is prima facie unfit, .. the inquiry will not proceed to a thorough examination of the child's true best interests"). Fitness is at issue in termination of parental rights cases; these cases are subject to standards other than the best interest of the child standard applicable in disputes between parents. See Santosky v. Kramer, 455 U.S. 745 (1982) (requiring that termination of parental rights be proven by clear and convincing evidence). Most states set out grounds, such as repeated and continued abuse and neglect, that must be established before parental rights can be terminated, and accord great deference to the natural parents. When one parent has killed the other, or a third party seeks custody in a suit against a natural parent, some courts proceed under termination of parental rights statutes, while others proceed under adoption statutes. 101. E.g., UNIF. MARRIAGE AND DivORCE AcT 402, 9A U.L.A. 561 (1973). Even alternative phrasings of this standard, such as presumptions for joint custody or for a primary caretaker, are still based on making a decision in the best interest of the child. See infra notes 104-06 and accompanying text. 102. Ironically, this has resulted in women losing custody because courts often look to nonnurturing factors that favor fathers, such as preferring the parent with greater financial resources. See Fineman & Opie, supra note 44, at 120 (asserting that nonnurturance factors have become important in custody decisions favoring men). Although "financial resources" is a facially neutral term, given the wage gap between men and women, it has a disproportionate impact on women and ultimately favors men. E.g., Becker, Politics, Differences and Economic Rights, 1989 U. Cm. LEGAL F. 169, 172-74. The gender-neutral child custody standard also has treated differently mothers and fathers who are employed. The standard also tends to reward the father upon his remarriage. Polikoff, Why are Mothers Losing: A Brief Analysis of Criteria Used in Child Custody Determinations,7 WOMEN'S RTs. L. REP. 235, 237-41 (1983). Polikoff rebuts the claim that fathers are treated unfairly in custody decisions by discussing studies showing that fathers who want custody have a substantial chance of succeeding. Id. at 216. Although fathers' rights groups already accuse the legal system of favoring mothers-a claim that appears to be supported by the fact that between 90% and 95% of all custody awards are to the mother-in contested custody cases, fathers are at least as likely, if not more likely, to win custody. Weitzman & Dixon, Child Custody Awards: Legal Standards and Empirical Patternsfor Child Custody, Support and Visitation After Divorce, 12 U.C. DAvIs L. REv. 471, 502-04 (1979); Polikoff, supra (cites to studies). See Massachusetts Gender Bias Study Committee, Gender Bias Study of the Supreme Judicial Court 62 (1989) (state-wide family law summary of attorneys who represented fathers seeking custody in more than 2100 cases in a five-year period found that, "when fathers actively sought physical custody, mothers obtained primary physical custody in only 7% of the cases"). 103. See, e.g., Fineman, supra note 3, at 738-39; Fineman, Implementing Equality: Ideology, Contradictionand Social Change: A Study of Rhetoric and Results in the Regulation of the Consequences of Divorce, 1983 Wis. L. REv. 789, 820-26 (criticizing efforts toward gender-neutrality). 104. Section 402 of the Uniform Marriage and Divorce Act states: The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including. (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian;
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child as a presumption for awarding joint custody; 10 5 a few states have interpreted the standard as a presumption for awarding custody to the 1 primary caretaker.'0 Because the focus under the best interest of the child standard is on how parental actions affect the child, parental behavior that is unknown to the child or committed outside of the child's presence is theoretically irrelevant.1 0 7 While judges do, of course, retain discretion, this approach is justified because it is not desirable to allow them to consider a whole range of issues that do not pertain directly to the child's
(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school, and community; and (5) the mental and physical health of all individuals involved. The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. UNi. MARRIAGE AND DIVORCE ACT 402, 9A U.L.A. 561 (1973). This factor approach has replaced earlier custody rules that established presumptions first for the father and then for the mother. See Fineman & Opie, supra note 44, at 111-21, for a brief history and critique of custody rules. The best interest of the child standard is vague and indeterminate. See Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477, 479 (1984) (discussing the search for meaningful factors). 105. See infra notes 109-14 and accompanying text. 106. In West Virginia there is a presumption that custody should be awarded to the primary caretaker. Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981). In other states primary caretaking is one factor for courts to consider under a best interest of the child standard. E.g., Van Dyke v. Van Dyke, 48 Or. App. 965, 618 P.2d 465 (1980); MINN.STAT. ANN. 518.17 (West 1990); see Annotation, Primary Caretaker Role of Respective Parents as Factor in Awarding Custody of Child, 41 A.L.R. 4th 1129 (1985) (discussing primary caretaker standard as a presumption and as a factor in best interest of the child decisionmaking). The benefits of this approach are that it provides greater clarity in decisionmaking, and it limits the discretion of the court so that it does not consider, for example, economic disparities
between the parties. See M.
FIELD, SURROGATE MOTHERHOOD
126-30 (1988). On the other hand,
although the standard is phrased in gender-neutral terms, it also-in the short run, at least-will generally result in awarding custody to the mother. Id. at 139-40; see David M. v. Margaret M., 385 S.E.2d 912, 923 (W. Va. 1989) (stating that "[tihis list of criteria [to determine the primary caretaker] usually, but not necessarily, spells 'mother' "); Neely, The Primary CaretakerParent Rule: Child Custody and the Dynamics of Greed, 3 YALE L. & POL'Y REv. 168, 180-81 (1984) (positing that the unequal effect on fathers is justifiable because mothers are often in an unfair economic position). A related problem with the standard is that it encourages "the notion that there is one primary caretaker. As a result, it may be harder for women to relinquish any of their tasks and for men to become involved as an equal partner in caring for their children." J. LINDGREN & N. TAUB, THE LAw OF SEX DISCRIMINATION 337 (1988). Notwithstanding its defects, a primary caretaker standard may resolve the problematic relationship between domestic violence and custody discussed in this Article because it will probably result in a custody award to the victim. Most victims of domestic violence are women, and most primary caretakers are women. A standard that results in more awards to women will, correspondingly, result in more awards to victims. Nonetheless, given that most states continue to examine the facts and circumstances of both parents in custody disputes, this Article will not discuss the relationship between the primary caretaker standard and domestic violence. 107. See Schneider, supra note 6, at 1811.

08 interaction with potential custodians. 1
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Joint custody statutes represent a modification of the best interest of the child standard. These statutes generally are based on the premises that the child benefits from maintaining contact with both parents after a divorce, and that parents should share the responsibilities of child care.109 Joint custody awards can take the form of joint legal custody, in which the parents have equal authority to make major decisions affecting the children, or joint physical custody, in which the parents share physical care and residential time with the children.110 This joint parenting has been perceived as more equitable to both the child and the parents than sole legal custody because it allows the child 1 and it encourages both parents to remain involved with both parents," 11 2 to participate in child-rearing. The statutes themselves establish different preferences for joint custody, ranging from joint custody as one 1 s to joint custody as a presumption in option that a judge can choose 1 14
the best interest of the child.
108. See Comment, supra note 100 (arguing that judicial discretion in this area allows courts to be homophobic in their consideration of parents' sexuality, and consequently, to deny custody to gay or lesbian parents solely because of their sexual preferences). 109. See Folberg, Issues and Trends in the Law of Joint Custody, in JOINT CUSTODY AND SHaD PARENTING 159, 160-61 (J. Folberg ed. 1984). The Texas statute controlling the appointment of "joint managing conservators" states that it is Texas's policy "to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage." Tsx. FAM. CODE ANN.
14.0 21(a) (Vernon Supp. 1991).
Joint custody has become increasingly popular during the past decade. Until 1979, when California enacted a statute establishing a presumption that joint custody was in the best interest of the child if the parents so agreed, only five states had joint custody statutes. See Germane, Johnson & Lemon, supra note 11, at 180 (noting that California amended its custody statute, CAL. Civ. CODE 4600(d) (West Supp. 1991), to establish no preference for or against joint or sole custody); see also Folberg, supra, at 159-60. Since then, almost every state has considered legislation on joint custody, and more than 30 states have some statutory provisions allowing courts to award joint custody. Schulman & Pitt, Second Thoughts on Joint Child Custody: Analysis of Legislationand its Implications for Women and Children, 12 GOLDEN GATE U.L. REV. 539, 545 (1982). 110. E.g., Hearingson Bills 975 and 3130 Before the New Jersey Senate JudiciaryComm., 1989 Sess. 3 (testimony of H. Joan Pennington, Esq., speaking on behalf of the National Center on Women and Family Law). Ms. Pennington notes that in many states, joint custody usually takes the form of legal custody rather than physical custody. Id. See Folberg & Graham, Joint Custody of Children Following Divorce, 12 U.C. DAvis L. REV. 523, 528-30 (1979). 111. See Fineman, supra note 3, for a discussion of how and why the helping professions have promoted joint custody. 112. Bartlett & Stack, supra note 13, at 32-33. The authors argue that joint custody promotes a positive message that both parents should be involved in child-rearing. Even when both parents do not initially agree to joint custody, they should be encouraged to consider it--except when custody would be impractical and would put women at an unfair disadvantage, such as when there has been domestic violence. Id. at 35-37. 113. E.g., IOWA CODE ANN. 598.41 (West Supp. 1991). 114. For example, the Florida custody statute provides: "The court shall order that the pa-
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IV. STATE RESPONSE
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Both state legislatures and courts are beginning to recognize the

relationship between child custody and domestic violence. 115 They have
integrated child custody into special proceedings established to protect 1 ' and they have integrated domestic violence into women from abuse," more traditional custody actions involving both joint custody and sole custody awards. In the past fifteen years, ten states and the District of Columbia have enacted legislation linking the two issues in traditional custody actions, and courts in at least another ten states have recognized that domestic violence should affect child custody determinations." Different state courts and legislatures, however, have adopted various approaches when a family with domestic violence dissolves.1 " Some
states have enacted statutes requiring domestic violence to be one factor in custodial decisions after the parents separate. Even when such statutes do not exist, some courts admit evidence of domestic violence in custody determinations. Similarly, in termination of parental rights proceedings, evidence of spouse abuse may be relevant in deciding whether a parent can provide for the child.1 9 Nonetheless, in light of
rental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child." FLA. STAT. ANN. 61.13(2)(b)(2) (Harrison 1989). 115. See J. PENNINGTON & E. THOMAS, supra note 8; Note, supra note 8. 116. Finn, supra note 36; see Rigwald v. Rigwald, 423 N.W.2d 701 (Minn. Ct. App. 1988) (holding that courts may decide custody issues in domestic abuse cases); Capps v. Capps, 715 S.W.2d 547 (Mo. Ct. App. 1986) (upholding court's authority to provide any statutory remedy available in civil protection order proceedings, including custody, regardless of pendency of other proceedings). Although these statutes demonstrate a critical insight by recognizing that the issues are interrelated, the statutes are not the focus of this Article. This Article instead examines how this insight has begun to inform more traditional custody proceedings. 117. There has even been federal legislation introduced on the subject. H.R. 2952, 101st Cong., 1st Sess., 135 CONG. REc. H4030 (1989), introduced by Reps. Connie Morella and George Miller on July 20, 1989, requires the State Institute of Justice to fund studies of how state courts consider the relationship between domestic violence and child custody issues and to develop judicial training curricula on the two issues. H.R. Con. Res. 172 passed the House on September 27, 1990 and the Senate on October 25, 1990; it encourages state courts to consider evidence of domestic violence. H.R. Con. Res. 172, 101st Cong., 2d Sess., 136 CONG. REc. H8280 (1990) (House approval); 136 CONG. REc. S18,252 (1990) (Senate approval). 118. Because the focus of this Article is the impact of violence between parents on a custody award, I do not address the cases and statutes on child custody that discuss parental abuse of a child. Moreover, unlike situations in which there are allegations of parental abuse, there is some civil protection available from the state when allegations of child abuse or neglect arise in custody cases. But see Deshaney v. Winnebago County Dep't of Social Serv., 489 U.S. 189 (1989) (finding no municipal liability under 42 U.S.C. 1983 for failing to protect child from abuse). 119. E.g., Nancy Viola R. v. Randolph W., 356 S.E.2d-464, 470 (W. Va. 1987) (stating that "first degree murder of a child's parent is the ultimate act of savagery to that child .... [w]e can conceive of few circumstances in which the termination of parental rights would be more justi-
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the treatment accorded domestic violence cases, 20 states have not responded adequately to the need for protection of domestic violence victims in custody proceedings. Existing state legislative actions recognizing the relationship between parental violence and custody can be divided into three categories: (1) statutes requiring courts to consider domestic violence before joint custody is awarded; (2) statutes adding domestic violence as a factor in the sole custody/best interest of the child standard; and (3) statutes directing that domestic violence influence other decisions, such as whether a parent has abandoned her children by fleeing domestic violence.12 1 None of these statutes prevents an abusive father, even one who has killed the mother, from winning a custody battle against the 2 1 2 mother or a third party such as the grandparents. State court decisions that consider domestic violence in the absence of legislation requiring them to do so have involved disputes between the natural parents as well as disputes between the father and 23 a third party, which often arise when the father has killed the mother.
fled"); In ke Abdullah, 85 111. 2d 300, 423 N.W.2d 915 (1981) (holding that premeditated murder of mother was prima facie evidence of father's depravity). But see infra notes 206-13 and accompanying text. 120. See infra notes 121-22 and accompanying text. 121. Additional issues might arise under either the federal Parental Kidnapping Prevention Act, 28 U.S.C. 1738A (1983), which sets out jurisdictional requirements for custody awards, or state parental kidnapping prevention acts, which may provide defenses for parental kidnapping when the parent has taken action to flee imminent physical harm. E.g., D.C. CODE ANN. 161023(a)(1), (2) (1989). These issues, however, are beyond the scope of this Article. 122. See infra notes 206-22 and accompanying text (discussing these cases). The Pennsylvania state legislature considered a bill that would require a court to find that a parent convicted of certain crimes, such as homicide or incest, does not pose a threat of harm to the child before that parent can receive custody or visitation. H.B. 1781, Sec. 1B, Pa. Sess. of 1989 (as reported out of Comm. on Youth and Aging, H.R., Nov. 13, 1989). 123. This latter type of case generally has the fullest discussion of the relationship between abuse and custody, especially when the state seeks to terminate the father's parental rights. Note, supra note 8, at 413. These cases illustrate courts' reluctance to deprive a natural parent of his or her rights solely because of spouse abuse. For example, in Bartasavich v. Mitchell, 324 Pa. Super. 270, 471 A.2d 833 (1984), the court discussed the standard for terminating the parental rights of a father who had been convicted of voluntary manslaughter for killing the mother of his children. The court noted the importance of parental care to a child and found that the father's incapacity as a parent was not permanent. The court found that the killing by itself did not meet the statutory requirements for termination of parental rights. Three years later another panel of the same court applied the same termination standard to a father who was imprisoned for life for killing the mother of their child and terminated his parental rights; unlike the father in Bartasavich, this father was serving a much longer sentence. In re Adoption of M.J.H., 348 Pa. Super. 65, 501 A.2d 648 (1985), appeal denied, 514 Pa. 636, 522 A.2d 1105 (1987). See also In re Adoption of John Doe, 99 N.M. 278, 282, 657 P.2d 134, 138 (1982) (stating that "[t]he murder of the mother by the father struck at the heart of the family," and that "[t]he conviction proved the father's inability to appreciate the impact of his actions on the child and to respect the emotional and physical needs of the child"). Discussion of an abusive father's rights with respect to a third party dramatizes courts' treat-
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Some courts have considered evidence of domestic violence as another factor comprising the best interest of the child.' Like the legislative responses, court decisions have developed within the framework of the best interest of the child standard, modifying the standard to take into account domestic violence between the parents. A. Modifications to the Statutory Joint Custody Standard Joint custody is a dangerous arrangement when there has been abuse.' 25 Successful joint custody requires continuing contact between the parents. A battered woman generally wants the abuser to stay away, but joint custody precludes separation because the parents must transfer children back and forth and participate jointly in decisionmaking. This ongoing communication provides excessive, yet legally required, opportunities for the batterer to continue his abuse. 2 " In states that have a statutory preference for joint custody or for custody awards to the parent who is more willing to share the child,' the battered woman must accede to joint custody or risk losing custody. If she appears to the court unlikely to want to share the child with the batterer, a court may give custody to the father instead. 2 ' In recognition of the specific problems of battered women, at least some states have modified their statutory standards for joint custody. Just as states have adopted different presumptions concerning joint custody itself, they have adopted different approaches to the inclusion of domestic violence as a factor in joint custody decisions. Three types of statutes explicitly require consideration of domestic violence before joint custody can be awarded. Under the first, and least protective of battered women, a court must consider abuse as one factor in the joint custody decision. According to the second type of statute, the court must have evidence that joint custody is in the best interest of the child, notwithstanding the existence of abuse. Finally, under the apment of the issues surrounding paternal abuse, even though these cases are not controlling in consideration of a father's rights in custody cases. See infra subpart IV(C)(2)(c) (discussing additional cases). 124. See infra notes 179-83 and accompanying text. 125. See Germane, Johnson & Lemon, supra note 11, at 194. To illustrate the dangers of joint custody or sole custody with liberal visitation, the authors describe a case in which, during visitation, a batterer forced his children to identify the hitherto secret neighborhood where his wife lived. The authors suggest that appropriately structured visitation could have avoided this situation and provided the necessary protection to the mother. 126. See Panel, Domestic Violence and Custody-"To Ensure Domestic Tranquility," 14 GOLDEN GATE U.L. REV. 623, 636 (1984). 127. This statutory preference may take the form of either an absolute preference for joint custody or a preference if one parent requests joint custody. As each joint custody provision is discussed infra, the type of preference involved is identified. 128. See Schulman & Pitt, supra note 109, at 554-56.
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proach most protective of battered women, a court cannot award joint custody if evidence of abuse exists. The Alaska statute is an example of the first form of legislation. It lists eight specific factors that the court must consider in deciding
29 whether to award shared custody. 1 These factors include "any evi-
dence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents" as well as a "friendly parent" provision.130 The Alaska statute is analogous to the American Bar Association's (ABA) Model Joint Custody Statute, which lists several factors to be considered in an award of joint custody, including the existence of domestic violence."'1
Iowa takes a similar approach in making a joint custody decision.132
If one parent requests joint custody, the court must delineate clear and convincing reasons supporting its decision not to award joint custody.133 The Iowa statute, however, recognizes the danger that may result from the cooperation required by joint custody, and directs courts to take the problem into account. A major benefit of the statutory approach adopted by Alaska, Iowa, and the ABA's Model Joint Custody Statute is the explicit requirement that courts consider domestic violence in joint custody decisions, thereby encouraging women to raise the issue. Because domestic violence is one factor among many, and has no particular weight assigned to it, however, the court can exercise substantial discretion in making a custodial decision. While a woman can introduce evidence of domestic
129. ALASKA STAT. 25.20.090 (Supp. 1990). The explicit legislative intent of the Alas~a legislature in enacting the 1982 amendments to the child custody statute was to help assure children continuing contact with both parents. Note to 25.20.060 (1983). Thus, although the legislature did not enact a joint custody preference, it nonetheless intended to encourage both parents to "guide and nurture their child." Id. Moreover, if a court denies joint custody after a request by a parent, it must state on the record its reasons for the denial; however, there is no comparable requirement that a court state its reasons for granting joint custody. Id. 25.20.100 (1983). 130. Id. 25.20.090(8), (6)(E) (Supp. 1990). As this Article was being written, the Alaska legislature significantly broadened the admissibility of evidence showing the presence of domestic violence; prior to 1989 the court was merely required to consider whether there was a history of violence between the parents. Compare id. 25.20.090(8) (1983). The friendly parent provision directs that the court consider "which parent is more likely to encourage frequent and continuing contact with the other parent." Id. 25.20.090(6)(E) (Supp. 1990). This provision is one component of a factor designed to help the court decide the "optimal time for the child to spend with each parent." Id. This use of friendly parent provisions, which is increasingly popular, is very dangerous for battered women, and is generally unfair to women who may have very good reason for believing the father should not have equal custody of the children. For additional discussion, see infra notes 148 & 270 and accompanying text. 131. 15 Fain. L. Rep. (BNA) 1494, 1495 (Aug. 22, 1989). The ABA statute, however, also states that joint custody may not be appropriate when there has been spouse or child abuse. Id. 132. IowA CODE ANN. 598.41(3)(i) (West Supp. 1991). 133. Iowa's policy is that children should have maximum contact with both parents unless harm from this arrangement will result to the other parent. Id. 598.41(1).
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violence, a court can accord that evidence virtually no weight. 13 4 The second type of statute, and that most frequently used, is one in which courts must provide a rationale for joint custody when the court finds that abuse exists. The Florida statute represents the weakest form of this provision. A Florida court must order joint custody unless it "finds that shared parental responsibility would be detrimental to the child. The court shall consider evidence of spouse abuse as evidence bf detriment to the child. ;' 35 If there has been spouse abuse, the court can award custody to the abused spouse and set visitation arrangements that will best protect both the custodial parent and the 3 6 There is, however, a friendly parent provision.", child." New Hampshire has adopted a stronger approach. While there is a general presumption that joint custody is in the best interest of the child, if there has been abuse,
the court shall consider such abuse as harmful to children and as evidence in determining whether joint legal custody is appropriate. In such cases, the court shall make custody and visitation orders that best protect the children or the abused spouse or both. If joint legal custody is granted despite evidence of abuse, the court shall provide written findings to support the joint custody order."8
Montana has adopted a modification of this type of provision, imposing a presumption that joint custody is in the best interest of the child if either parent requests joint custody. A court must "state in its decision
the reasons for denial of an award of joint custody .
. .
. [A] finding
that one parent physically abused the other parent or the child is a sufficient basis for finding that joint custody is not in the best interest of the child."'3 9 This second approach focuses more than the first model on the problems that domestic violence presents when parents are asked to share responsibility for the children. While the first approach simply requires courts to consider spouse abuse in determining custody, the second approach requires courts to provide a rationale for giving even
134. See infra subpart V(A). 135. FLA. STAT. ANN. 61.13(2)(b)2 (West Supp. 1991). Under this statute the court must
order shared custody unless it is detrimental to the child. The "detrimental" formulation appears
to allow a court to award shared custody which, while not in the best interest of the child, is not detrimental to the child. Under an apparently conflicting section, a court must decide custody based on the best interest of the child. Id. 61.13(2)(b). 136. Id. 61.13(2)(b)2. 137. Id. 61.13(3)(a). The statute sets out factors relating to the child's best interest for a court to consider for "purposes of shared parental responsibility and primary residence," including which parent is more likely to permit the nonresidential parent continuing contact with the child. Id. 61.13(3). 138. N.H. REv. STAT. ANN. 458:17(II)(c) (Supp. 1990). This provision was added in 1988. 139. MONT. CODE ANN. 40-4-224(1) (1989).
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40 Nonetheless, the second, more partial custody to an abusive parent.1 comprehensive approach still does not prevent a court from ordering joint custody, notwithstanding evidence of violence, when it determines that joint custody is in the best interest of the child. Finally, under the third approach to custody decisions, Texas will not allow joint custody when abuse is demonstrated. A Texas court cannot award joint custody "if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or any child.1' 41 The Texas statute protects the battered woman who can prove a pattern of abuse by preventing the court from awarding joint custody. This approach leaves the judge no discretion because joint custody simply cannot be ordered when there has been a history of abuse. Such a statute cogently recognizes the problem of joint custody for women and children in abusive situations.142 Among the states that permit joint custody, Texas has adopted the statute most protective of the rights of battered women. While the Texas statute precludes joint custody when there has been battering, however, it does not explicitly exclude an award of sole custody to the batterer, or even an award of extensive unsupervised visitation. The Texas approach to battering and joint custody must be joined with other statutory provisions that recognize the implications of domestic violence in friendly parent provisions and establish the importance of supervised visitation. Even the Texas statute does not require a court to consider domestic violence in an award of sole custody. 143 The existence of a rhetoric of joint custody demonstrates the law's attitude toward domestic violence. Joint custody is predicated on the acknowledgement that parents must cooperate with one another. When there has been abuse, however, the victim can only cooperate with the abuser under duress.14 4 A presumption of joint custody without a concomitant requirement that there be no joint custody upon evidence of abuse ignores the situation of battered women. Redress through a prohibition of joint custody when there is evidence of abuse helps women 140. The statute requires: "In making an award [of custody], the court shall state in its decision the reasons and factors considered in making the award." Id. 40-4-223(3). 141. TEx. FAM. CODE ANN. 14.021(h) (Vernon Supp. 1991). Unlike other statutes discussed in this subpart, Texas has no preference for joint custody. 142. The State of Washington has adopted a similar statute directing that a permanent child custody plan cannot require mutual decisionmaking by the parents or a dispute resolution process other than a return to court if there is a history of domestic violence or a felonious domestic
violence act. WASH. REv. CODE ANN. 26.09.191 (Supp. 1991).
143. See also Note, supra note 8, at 428-29. 144. Even those who applaud the expressive nature of joint custody agree that it should not be ordered when potential for abuse exists. Bartlett & Stack, supra note 13, at 37.
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who can prove domestic violence, but for women who are unable to produce evidence that meets burden of proof requirements, or women who do not want to come forward in court with such evidence, there is no redress. While joint custody encourages the rhetoric, at least, of equal participation by both parents,4 5 in reality it may hinder abused women 6 seeking custody. 14 Requiring an abusive father and his victim to make joint decisions about their children necessarily continues the exposure of the children to their parents' bad relationship and may promote intergenerational 47 A friendly parent provision in the law exmessages condoning abuse. 1 acerbates the situation because it gives the batterer additional power: a woman who does not want contact between her children and the battering spouse' 14 cannot so inform the court, lest she seem uncooperative or 8
"unfriendly. Moreover, this provision presents an apparent conflict
with statutory provisions that require courts to consider spouse abuse in their child custody decisions. If, in a state with a friendly parent provision, a woman claims she has been abused but cannot prove the existence of abuse to the satisfaction of the judge, the mere fact that she has made the allegation will make her appear less cooperative. Therefore, given her unfriendly attitude, she is even less likely to get custody. B. Modifications to Best Interest of the Child Statutes
Like joint custody statutes, best interest of the child statutes' 4 9 are
being modified in some states to require courts to consider evidence of abuse in their custody decisions. Modifications to these statutes typically add another factor for the court to consider when determining the best interest of the child; the statutes differ slightly in phrasing and in whether consideration of all of the listed factors is mandatory or 0 15
discretionary.
145. Id. 146. Walker & Edwall, Domestic Violence and Determinationof Visitation and Custody in
Divorce, in DomxsTIc VIOLENCE control." Id.

147.
ON TRIAL,
supra note 5, at 127, 130-31. The authors note that in
joint custody situations, "many battered women are too worn down emotionally or are too frightened of losing contact with their children, .. give in rather than fight the batterers' demands for See supra notes 97-99; Note, supra note 8, at 420-21.
148. See Schulman & Pitt, supra note 109, at 554-56. 149. Joint custody statutes are best interest of the child statutes; however, this subpart addresses traditional best interest of the child statutes that contemplate sole custody.
150. The statutes discussed in this subpart include domestic violence as a factor in determining the best interest of the child. There may be other portions of the custody statutes relating to joint custody awards; however, unlike statutes reviewed in subpart IV(A), the statutes addressed infra do not themselves require that domestic violence affect the joint custody decision. For exam-
ple, Minnesota has a rebuttable presumption that joint legal custody is in the best interest of the
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In Oregon the statute suggests four factors that the court may con'151 sider relevant, including "[t]he abuse of one parent by the other. The Oregon courts, however, cannot rely on any one factor to the exclusion of all others. 1 52 Under the Illinois statute the court "shall consider all relevant factors including . . . the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person."' 5 The court, however, cannot consider conduct that does not affect a custodian's relationship with the child. 5 4 The Montana statute is phrased similarly to the Illinois statute but, in addition, Montana has a friendly parent provision. 155 Thus, when the court makes an award of sole custody, it must consider which parent is more likely to allow continuing contact with the other parent. 5 s In Minnesota one of the relevant factors that must be considered by the court is "the effect on the child of the actions of an abuser, if related to domestic abuse . . . that has occurred between the parents. 1' 5 7 Like the Illinois statute, however, the Minnesota statute does
child if it is requested by either parent. MINN. STAT. ANN. 518.17 subd. 2 (West Supp. 1991). In setting out the standard for courts to use when joint custody is requested, the Minnesota statute requires that courts consider a list of best interest of the child factors set out elsewhere-including a domestic violence factor-as well as additional factors relevant only to the joint custody decision. The domestic violence factor is considered in subpart IV(B) of this Article, not in subpart IV(A). 151. OR. REV. STAT. 107.137(1)(d) (1990). 152. Id. 107.137(2). Nor can the court rely on either parent's "conduct, marital status, income, social environment," or similar factors unless they are shown to cause damage to the child. Id. 107.137(3). 153. ILL. ANN. STAT. ch. 40, para. 602(a)(6) (Smith-Hurd Supp. 1991). Until January 1, 1989, a child was required to witness the violence before it could become relevant. 1988 Ill. P.A. 85-1417, 1, eff. 1/1/89. But see In re Custody of Williams, 104 IM. App. 3d 16, 18, 432 N.E.2d 375, 376 (1982) (finding relevant the father's abuse and stating that it "serves as a beacon to the trier of fact of his potential for violence and physical harm. . . ."; even though the child may not have witnessed the battering, the best interest of the child may require removing him from the harmful environment). 154. ILL. ANN. STAT. ch. 40, para. 602(b) (Smith-Hurd Supp. 1991). This provision is adapted from the Uniform Marriage and Divorce Act where it had a "two-fold purpose. . . to eliminate the need for parties 'to spy on each other' and to remove 'irrelevant' evidence" from the court's purview. ILL. ANN. STAT. ch. 40, para. 602(b) (Smith-Hurd 1980). Auerbach & Jenner, "Historical and Practice Notes," at 20. Advocates may face the paradox of seeking to introduce evidence of parental violence that the child has not witnessed, only to have that evidence excluded because it does not affect the child's relationship with her parents, under the best interest of the child standard. 155. MONT. CODE ANN. 40-4-212(1) (1989). Montana is one of the few states to require courts to consider domestic violence in separate sole custody and joint custody provisions. 156. Id. 40-4-223(b). 157. MINN. STAT. ANN. 518.17, subd. 1(12) (West 1990). Minnesota has a rebuttable presumption that joint custody is in the best interest of the child when requested by either parent. In this situation, however, the court must consider all factors comprising the best interest of the child, including the existence of abuse. Id. 518.17 subd. 2. Like Montana, Minnesota is now one of the few states to require courts to consider domestic violence in separate sole custody and joint custody provisions.
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58 not permit a court to consider conduct that does not affect the child. 1 In Arizona the statute provides that "[t]he court shall consider evidence of domestic violence as being contrary to the best interest of the child. If the court finds that domestic violence has occurred, the court shall make arrangements for visitation that best protect the child and the abused spouse from further harm."15 On the other hand, one factor used to determine the best interest of the child is which parent will 60 allow more contact with the other parent. 1 Some states that do not set out specific factors to be used in determining the child's best interest nonetheless provide that a court must consider domestic violence. Wyoming amended its custody statute in 1989 to require a court to "consider evidence of spouse abuse or child abuse as being contrary to the best interest of the child. If the court finds that family violence has occurred, the court shall make arrangements for visitation that best protect the child and the abused spouse from further harm."' 1 Finally, some states have adopted other measures regarding domestic violence and custody. Colorado and Kentucky have absent spouse provisions under which a court cannot take as evidence of abandonment the fact that an abused spouse left her children with the abuser when 2 In California, if there has been a civil proshe fled domestic violence. 16 158. Id. 518.17 subd. 1(b). 159. ARIZ. REv. STAT. ANN. 25-332(B) (1991). This is similar to the North Dakota statute, which provides: In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence and, if the court finds that domestic violence has occurred, shall give direction for the custody of children of the marriage and grant rights of visitation in a manner that best protects the children and the parent or other family or household member who is the victim of domestic violence from any further harm. N.D. CENT. CODE 14-05-22(3) (Supp. 1989). The statute contains similar language in a separate section setting out the best interest of the child factors. Id. 14-09-06.2(1)(). 160. ARiz. REv. STAT. ANN. 25-332(A)(6) (1991). Missouri's approach requires the court to consider "[tihe mental and physical health of all individuals involved, including any history of abuse of any individuals involved." Mo. STAT. ANN. 452.375.2(5) (Vernon Supp. 1991). Like Montana it also has a friendly parent provision. Id. 452.375.2(8). New Jersey also requires that the court consider the history of domestic violence in making any custody award; and, in an innovative manner, it requires courts to consider "the safety of the child and the safety of either parent from physical abuse by the other parent." N.J. STAT. ANN. 9:2-4(c) (West Supp. 1991). See Wis. STAT. ANN. 767.24(5)(h), (i) (West Supp. 1990) (providing that courts must consider domestic violence in best interest decisions).
161. Wyo.
STAT.
20-2-113(a) (Supp. 1991).
In Pennsylvania, the best interest of the child statute was amended in 1990 to require a court to consider "each parent and adult household member's present and past violent or abusive conduct.. . ." 23 PA. CONS. STAT. ANN. 5303(a) (Purdon Supp. 1991). The only other listed factor is a friendly parent provision. Id. 162. COLO. REv. STAT. 14-10-124(4) (1989); Ky. REv. STAT. ANN. 403.270(2) (Michie/BobbsMerrill 1984). See Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989) (the court cited the stat-
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tection order entered during the pendency of the child custody proceeding, then the court must consider whether the best interest of the child requires supervised visitation."" Similarly, in Minnesota otherwise mandatory mediation of custody and visitation disputes is not required 64 when there has been domestic violence. While the sole custody/best interest of the child standard avoids many of the problems inherent in joint custody because there is no required cooperation between the parents, simple inclusion of domestic violence as one factor to be considered in a custody decision is not an adequate solution. Courts are free to give as much-or as little-consideration to the enumerated factors as they choose. No particular factor outweighs another, so an abusive parent could receive unrestricted visitation based on the court's perceived need of the child to have extensive contact with both parents. Judges have broad discretion in custody cases to weigh the statutory factors based on their own perceptions of the family. 1 5 Appellate courts generally do not disturb child custody decisions made by trial courts absent a finding that the trial court has abused its discretion or that the award is contrary to the manifest weight of the evidence. Appellate courts assume trial courts have the best opportunity to assess credibility and determine the needs of the children. 6 6 Therefore, different judges treat domestic violence inconsistently and do not accord sufficient attention in custody decisions to the effects of domestic violence 67 on children. C. Court Decisions
68
Under best interest of the child statutes, trial courts have discretion to decide the weight to accord domestic violence in custody decisions. The resulting judicial opinions have differed dramatically in their
ute, stating: "Of course, there can be no abandonment when, as here, the wife was forced to leave the home under threat of physical violence"). 163. CAL. Civ. CODE 4601.5 (West Supp. 1991). 164. MINN. STAT. ANN. 518.619 subd. 2 (West 1990). 165. See Mnookin, supra note 3, at 262. Jay Folberg notes that judges find "themselves in the perplexing bind of trying to predict, with limited information and no existing consensus, which of two fit parents would best guide a child toward adulthood." Folberg, Custody Overview, in
JOINT CUSTODY AND SHARED PARENTING, supra note 109, at 3, 5.
166. E.g., In re Arthur C., 176 Cal. App. 3d 442, 222 Cal. Rptr. 388 (4th Dist. 1985) (termination of parent rights case in which father killed mother); In re Marriage of Siegel, 123 Ill. App. 3d 710, 715, 463 N.E.2d 773, 778 (1984); Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 436 N.E.2d 1260, 1263, 451 N.Y.S.2d 658, 661 (1982) (modification of custody award). 167. See infra subparts IV(C), (D) & Part VI. 168. Only when custody is contested are there court decisions. As many as half of all contested custody cases may involve family violence. Walker & Edwall, supra note 146, at 127, 130. Abusive fathers frequently use the legal system as an additional means to harass the mother. Id.
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handling of evidence of domestic violence. Some courts find its effect on children so deleterious that custody is awarded to the victim, while others dismiss its impact.0 9 When the abuser has killed the mother, courts may ignore the violence between the parents, directing focus away from the crime to whether the imprisoned parent can continue to care for the child. 170 Courts are uncomfortable terminating parental rights because of abuse. While it is important for trial courts to retain discretion to decide cases on the facts presented, there needs to be a standard indicating how domestic violence should affect the decision. The discussion below begins with an analysis of cases in which courts dismissed the relevance of domestic violence. It then explores cases that illustrate the contrast in approaches chosen by state courts that have considered evidence of domestic violence. 1. Courts Dismissing Domestic Violence In the vast majority of cases, domestic violence is either deemed irrelevant to custody decisions or is not taken seriously.'1 ' The case of one Maryland woman provides an example of judicial treatment of this issue. The woman, who had been abused by her husband for seven years, nonetheless agreed to joint physical custody because she was
169. See infra subpart IV(C)(2)(a), (b). 170. See infra subpart IV(C)(2)(c). 171. State task forces on gender bias in the courts often address domestic violence in custody cases. In Nevada the task force explained: The best interest of the child is rarely, if ever, served by placing a child with a parent who is physically abusive to either a child or a child's parent. In the judgment of some who addressed the Task Force this point does not appear to be recognized by judges in making custody awards. Nevada Supreme Court Gender Bias Task Force, Justice for Women 43 (First Report, undated). The Washington state task force reported that the "majority of lawyers and judges agreed that judges 'usually' or 'always' give due consideration to violence whether by father or mother in an
award of custody."
WASHINGTON STATE TASK FORCE ON GENDER AND JUSTICE IN THE COURTS, GENDER & JUSTICE IN THE COURTS 66 (1989). The public testimony, however, portrayed a different
picture: "[W]itnesses felt that the courts gave less credence to the testimony of mothers on domestic violence and sexual abuse allegations in custody and visitation determinations." Id. at 68-69. In Maryland a special joint committee reported as follows: [L]awyers and judges were asked whether "child custody awards disregard fathers' violence against mothers." Over half (63%) of judges thought the statement was rarely or never true, indicating their belief that the father's violence against mothers usually is or should be a
consideration in child custody determinations. Their opinion was shared by roughly the same
percentage of male attorneys (64%), but by only a third of female attorneys (35%). The most troublesome issue disclosed by the Committee's investigation is that some judges refuse to consider at all or give too little weight to violence which a mother has suffered at the hands of the father unless the child has been a victim as well or has witnessed the violence.
MARYLAND SPECIAL JOINT
COMMITTEE,
GENDER
BIAs
IN THE COURTS
31, 37 (1989).
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"[t]errified that he would disappear with the children." Although her husband was subsequently investigated for child abuse and neglect, the court upheld their joint custody agreement. According to the woman,
[e]vidence regarding spousal abuse was deemed not pertinent to the issue of custody. Incredibly the judge seemed to shift responsibility for my ex-husband's uncontrollable temper to me by ruling, "A person may be violent and vindictive towards a spouse and yet be the best, most loving, caring, parent in the world. And may even in the presence of the other spouse exhibit something towards the kids that he/she normally wouldn't do because he/she is irritated with the other 7 1 spouse." 2
A Florida court seemed to share the above opinion when it ruled that an abusive husband did not pose a danger to his child.17 Though the man's violent and irrational behavior included throwing his wife to the ground, beating her when she was four months pregnant, and threatening to kill her, her father, and himself, the court accepted a psychologist's conclusion that the man's "past violence was related to the deterioration of his relationship with [his wife], ' and was presumably unrelated to his fitness as a parent. The court apparently dismissed the battering that occurred while the woman was pregnant. The idea that battering is unrelated to parenting is almost beyond belief; in contrast, it is, for example, virtually beyond question that drug or alcohol abuse by a parent is an important, if not critical, consideration in a custody decision. Research shows that woman battering has
172. Hearings on H. Con. Res. 172 Before the Subcomm. on Administrative Law and Government Relations of the House Comm. on the Judiciary,99th Cong., 2d Sess. (1990) (testimony of Marcia Shields) (copy on file with the Author). The court seemed to miss the point that irritation or anger is not equivalent to violence, and this distinction is what separates acceptable from unacceptable behavior in parents. In a similar case a New Jersey woman sought to use battered woman syndrome to explain why she relinquished custody of her children to her husband. Glasbrenner v. Sapio, No. A-4263-88T5 (N.J. Super. Ct. App. Div. Feb. 6, 1990), petition for certificationdenied, 122 N.J. 130, 584 A.2d 205 (1990). The court held that she had not shown that her agreement was the product of inequitable conduct on her husband's part. Id. at 13. But see Hill v. Hill, No. 86-0399 (Ill. App. Ct. Dec. 4, 1987) (LEXIS, States library, Ill. file) (Illinois judge changed custody from the father to the mother after the mother testified that she had initially agreed to give custody to the father because he had beaten her and the children. The court ordered the modification because the evidence of abuse was not before the judge at the time of the initial custody award). 173. Collinsworth v. O'Connell, 508 So.2d 744 (Fla. Dist. Ct. App. 1987). 174. Id. at 745. A profitable comparison is provided by Collins v. Collins, 297 S.E.2d 901, 902 (W. Va. 1982), in which a mother was accused of firing a rifle at her ex-husband when he came to visit their child. Although the evidence did not prove conclusively that the incident actually occurred, the court found the woman to be an unfit mother because she had "demonstrated [a] tendency to be violent as evidenced by her willingness to threaten with and to actually shoot a deadly weapon at human beings when she was upset, but not in any way threatened." Id. at 902. The standards seemed to have changed quite drastically when the violent behavior of a woman was in question; this court looked at parental fitness instead of the best interest of the child, and appeared to have a much lower tolerance for violent behavior than courts have shown in cases involving violent men.
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an impact on children. Thus, these effects must be considered when courts decide child custody. 2. Courts Influenced by Domestic Violence
a. Sole Custody Some courts have explicitly held that domestic violence is a major concern in custody and visitation decisions. In one case a California appellate court affirmed the appropriateness of an order placing the child with the mother at an undisclosed location so that the father would be unable to continue his violence against the mother. 7 5 The court stated between his parthat the child must have been affected by the violence 1 76 harmed. physically not was he though ents, even In an Illinois case a state statute required the court to consider physical violence only if directed at or witnessed by the child. The court denied custody to the father because of a brutal beating he inflicted upon the mother. 1" The court found that although the infant was too young to comprehend the event, "the best interests of the child may environnecessitate removing the child from the potentially' 7harmful 8
ment irrespective of the child's state of knowledge.'
These courts appear to view domestic violence as a significant, if not controlling, factor in the custody decision. The courts admitted evidence of domestic violence and deemed it highly relevant to both custody and visitation decisions. Other courts have not relied solely on domestic violence, but have acknowledged that it is one of several factors bearing on the best inter17 9 est of the child that might lead to the denial of custody to a parent. An example of this multiple factors approach is found in a Wisconsin case in which the trial court had awarded custody to a father. 80 The trial court refused to hear evidence of the father's violence toward his
175. In re Jon N., 179 Cal. App. 3d 156, 224 Cal. Rptr. 319 (1986). 176. Id. at 161, 224 Cal. Rptr. at 322. App. 3d 16, 17-18, 432 N.E.2d 375, 376 (1982). 177. In re Williams, 104 IlM. App. 3d 169, 556 App. 3d at 19, 432 N.E.2d at 377; see In re Wiley, 199 Ill. 178. 104 Ill. N.E.2d 809 (1990) (holding that even when there was no evidence of abuse of children, the trial court properly concluded that allegations of abuse could be a decisive factor in the custody decision). In a third case a New York court denied visitation completely to a father who continually harassed the mother in front of the child. Goldring v. Goldring, 73 A.D.2d 955, 957, 424 N.Y.S.2d 270, 273 (1980). See also Meisner v. Meisner, 111 A.D.2d 788, 490 N.Y.S.2d 536 (1985). The trial court ignored allegations of physical and mental abuse toward the mother, the children, and third persons during a hearing on visitation; the appellate court deemed evidence of this violence relevant to the disposition of the case and remanded the matter for a new hearing. 179. E.g., Marchant v. Marchant, 743 P.2d 199 (Utah App. 1987) (though no factors were definitively enumerated, the court clearly indicated that spouse abuse is one of them). 180. Bertram v. Kilian, 133 Wis. 2d 202, 203, 394 N.W.2d 773, 774 (Wis. Ct. App. 1986).
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wife because there had been no showing that the husband's abuse affected the children's health.181 The appellate court reversed, holding that parental abuse affected two factors that each court must consider in determining the best interest of the child: the interaction of the child with her parents, and the mental and physical health of all parties 8 2
involved.1
Similarly, a Missouri appellate court denied custody to a father on the basis of other factors in conjunction with the presence of spouse abuse. These factors included evidence of drug abuse, lack of interest in the child and broken promises made to her, abuse of the child by the father's girlfriend, and testimony by a family counselor that the father was unfit to have custody and that the child's welfare would be endangered if he received custody and married his girlfriend."8" b. Joint Custody Decisions Cases in which courts do not award joint custody because of one parent's abuse tend to focus on whether parents will be able to cooperate with each other in making decisions concerning their children. In these decisions, courts explain that joint custody is not appropriate because the parents are unable to get along with each other, notwithstanding the father's abuse. Courts do not hold the abuser responsible for his behavior, but rather consider violence only insofar as it may hinder the parents' ability to work together. In Heilmann v. Novak the court acknowledged that the father beat and repeatedly threatened to kill the mother,' 8 4 yet considered this abuse only as part of the evidence that the parents had an "acrimonious and contentious" relationship.' 85 The father also removed furniture
181. Id. at 203-04, 394 N.W.2d at 774. The court nonetheless admitted evidence of the violent character and abusive behavior of the mother's live-in boyfriend. (The appellate court's decision does not explain the trial court's theory as to why this evidence was admissible against the boyfriend, but not the father.) 182. Id. at 204-05, 394 N.W.2d at 774. The court held that evidence of domestic violence was relevant regardless of whether there was a showing that the children had been affected. Parental violence and abuse affect "the interaction and interrelationship of the child" with the parent and may affect the mental and physical health of the children. The violent and abusive spouse may have the same potential as a parent. Weighing the risk of actual future violence or abuse may be difficult but it is necessary to the custody determination. Id. at 205, 394 N.W.2d at 774. 183. In re Campbell, 685 S.W.2d 280, 283 (Mo. App. 1985). In this case testimony by the mother that the father had an uncontrollable temper and had physically abused her many times was "'discounted a great deal' by the trial court," but "there was. . . other evidence to the same effect," including the father's own admissions to some violent acts. Id. 184. Heilmann v. Novak, 771 P.2d 948 (Kan. App. 1989). There was testimony that the defendant actually hired someone for $5000 to kill his wife. 185. Id.
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from the house, shut off utilities, failed to make court-ordered child
support payments, called the mother's employer and alleged that she had committed fraud, was convicted for harassing the mother by telephone, and threatened to draw out divorce proceedings to injure the 8 ' In addition, the father actually called the mother's attorney mother." and admitted that he did not want custody of the child and that he thought the mother was better suited for it. 87 The court characterized this evidence as illustrative of the hostile relationship between the parents, but did not assign responsibility for the hostility."' e Rather than concluding that it was not in the best interest of the child to award joint custody because of the father's behavior, the court held that in light of the parents' relationship, joint custody was "impractical."1 89 In another case the father exhibited abusive behavior toward the 9 ' Without exploring the namother, sometimes in front of the child." ture of the abuse, its impact on the child, or its relation to the father's fitness as a parent, the court awarded custody to the mother because "the potential for cooperation in joint decision making was far outweighed by the evidence of power struggles and hostility."-91 In these cases domestic violence was acknowledged in the facts, but ignored in the legal analysis as a basis for the refusal to award joint custody. This approach contrasts with a Montana court's use of domestic violence in a variation of the multiple factors approach as a way to circumvent the fact that spouse abuse per se was not a sufficient basis 1 2 In refusing to award joint custody, 19 on which to deny joint custody. the court held that abuse was relevant to two factors: (1) the wishes of the parents regarding custody; and (2) the mental and physical health of all individuals. 93
186. Id.
187. Id. 188. Id.

189. 190. Id. Kline v. Kline, 686 S.W.2d 13, 15 (Mo. Ct. App. 1984).
191. Id. at 16. A Massachusetts court used a similar analysis in Rolde u. Rolde, where the basis for the divorce complaint filed by the wife was "cruel and abusive treatment." Rolde v.
Rolde, 12 Mass. App. Ct. 398, 425 N.E.2d 388 (1981). The court, however, addressed this issue only in a footnote, acknowledging that both parties had caused each other emotional distress. Id. at 399 n.2, 425 N.E.2d at 389 n.2. The court concluded that the parents could not cooperate with each other and therefore awarded custody to the mother simply because she was the primary caretaker and the one most closely bonded with the children. Id. at 406, 425 N.E.2d at 392. 192. In re Houtchens, 233 Mont. 266, 760 P.2d 71 (1988). At the time of the trial court's decision, spouse abuse was not listed in the state statute as an appropriate factor in a custody determination. 193. Id. at 269, 760 P.2d at 72. The trial court heard testimony from an expert in the fields of domestic violence and social work who testified that children are at risk when they live with the batterer, both because of the likelihood that the children will be battered and because the batterer is an inappropriate role model. Id.
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Courts that consider domestic violence in the context of both sole and joint custody are, of course, influenced by the severity of the violence. In some cases the courts employ tortuous rationalizations to tie 1 94 custody to domestic violence or to explain its impact. Although two courts considered domestic violence relevant to two factors under the best interest of the child test in both a sole and a joint custody proceeding,1" other courts have not attempted to tie domestic violence to any specific factor; instead, they have considered it generally relevant to the best interest of the child. 96 Of course, in many cases, evidence of domestic violence is simply not considered relevant.
97
The varying de-
grees of significance and the differing implications attached to domestic violence indicate the confused nature of judicial decisionmaking in this area.
1 98 c. Cases in Which One Parent Has Killed the Other
When one parent has killed the other, there is a tension between the remaining parent's rights as a natural parent and the interests of third parties, including the state, other relatives, and the children. Case law and statutes in many states distinguish custody disputes between the natural parents from those between a natural parent and a third party. In practice, however, the courts' analyses of custody disputes between a natural parent and a third party often adopt and, in effect, magnify the manipulative techniques and disparity plaguing the corresponding analyses by courts hearing custody cases between two natural parents. Indeed, some cases reveal an overlap of the two standards."9 Because the only options in a dispute between a natural parent and a third party may be terminating parental rights or granting custody to
194. See supra notes 195. See supra notes 196. See supra notes 197. See supra notes 184-91 and accompanying text. 180-82, 192-93 and accompanying text. 175-78 and accompanying text. 171-74 and accompanying text.
198. This subpart considers only abusers who kill. For examples of the disposition of custody in cases in which battered women kill their abusers, see A. BROWNE,supra note 29. Many such women seem likely to receive custody. Id. 199. Cases between a natural parent and a third party reveal some of the same judicial discomfort and inconsistency when courts are faced with domestic violence. The courts' analyses closely parallel and sometimes overlap with the patterns of the courts applying the best interest of the child standard. In third-party cases, which also may arise because of the natural death of a parent, courts often conflate the standard for custody between two parents with the standard for custody between a natural parent and a third party. For example, in a dispute between a father and the maternal grandparents following the mother's death of cancer, a Minnesota court refused to deny custody to a father despite evidence (including domestic violence) "sufficient only to establish a preference for another natural parent." In re P.L.C., 384 N.W.2d 222, 227 (Minn. Ct. App. 1986). The court articulated the standard as "a combined consideration of the best interests of the child and the presumption of parental fitness." Id. at 225.
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the natural parent, courts grapple with the implications of the parental killing. They have thus used several-often bizarre-theories to justify a custodial arrangement. Courts often are precluded from considering the actual abusive act of killing the other parent. Instead, courts analyze the impact of the act on the abuser's parenting abilities. In In re Adoption by BenignoWhite the court stated that it would focus "on the consequences of the act, not on the nature of the act itself." 0 0 Case law prevented the court from taking into account the father's conviction for murdering his wife. Nonetheless, the court terminated the father's parental rights because his thirty-year incarceration indicated that he would be unable to "perform the regular and expected parental functions of care and support" for the child. 0 1 Similarly, a Georgia court terminated a father's parental rights by examining only the consequences of the act of murdering the child's mother. 2 The court found that the child was deprived as a result of his mother's death at his father's hands; that the father was unfit to care for the child because he was serving a life sentence; that the deprivation caused the child to suffer physically, mentally, and emotionally; and that the evidence showed that a future relationship between father and son would be harmful to the child.20 3 Finally, the decision of a South Dakota court, which terminated the parental rights of a father who had killed the mother of his child, relied primarily on the father's voluntary consent-which he subsequently challenged-to termination. 4 The court noted, however, that the evidence supported even involuntary termination of parental rights and, in fact, the termination proceedings were commenced and processed under
200. In re Adoption by Benigno-White, 223 N.J. Super. 72, 77, 537 A.2d 1345, 1348 (1987). 201. Id. at 78, 537 A.2d at 1348-49 (quoting language from N.J. STAT. ANN. 9:3-46(a) (West Supp. 1991)); see also In re Adoption of M.J.H., 348 Pa. Super. 65, 501 A.2d 648 (1985), appeal denied, 514 Pa. 636, 522 A.2d 1105 (1987) (father's parental rights were terminated because his conviction for first degree murder functionally deprived the child of both her parents; the mother was dead and the father was permanently incapable of performing essential parental duties). 202. Heath v. McGuire, 167 Ga. App. 489, 491-92, 306 S.E.2d 741, 743 (1983). 203. Id. at 492, 306 S.E.2d at 743. See Brown v. Department of Human Resources, 157 Ga. App. 106, 276 S.E.2d 155 (1981), in which the fact that a father intentionally killed his wife when their twins were three months old was highly relevant to the court's decision to terminate his parental rights. The court stated that the father's "misconduct in intentionally killing the chil. ." Id. at 108, 276 S.E.2d at 157. As an integral dren's mother ... renders him morally unfit.. part of the decision to terminate the father's rights, however, the court examined the father's past contact with the children. The court learned that the children had lived with their mother in poverty while the father was gainfully employed, that the father had uncertain employment possibilities, and that his past acts did not indicate any ability to provide the special care required by the children, who were developmentally retarded. Id. at 107, 276 S.E.2d at 156-57. 204. In re A.M.L., 371 N.W.2d 358, 359 (S.D. 1985).
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a statute for which parental consent was not needed. 0 5 Nonetheless, the fact that the court first undertook an unnecessary analysis of whether voluntary consent was given indicates a reluctance to focus on violence as the main issue. Other courts have discounted evidence of domestic violence and its effects in favor of other factors indicating parental fitness. Perhaps the most dramatic example is In re Lutgen,0 6 one of the few reported cases in which a court has explicitly considered the domestic violence factor as mandated by a state statute. In this case an minois appellate court upheld the trial court's custody award to a man who had killed his wife, finding both that Mr. Lutgen was a fit parent and that it was in the best interest of the children for him to receive custody. 0 7 On the day that she was killed, Carol Lutgen had obtained an ex parte civil order of protection and filed to dissolve her marriage, although these documents were not served upon James Lutgen that day. Later in the same day, Ms. Lutgen refused to allow their two children, Dana and Tracey, to go out shopping with their father. The parents began fighting and, accord208 ing to her husband's testimony, Ms. Lutgen began choking him. In response, Mr. Lutgen choked her until she fell down. When she pulled herself up, she began choking him again; he choked her until she fell to the floor and died. I Mr. Lutgen pled guilty to manslaughter, was sentenced to four years' imprisonment, and served thirteen months. Following Mr. Lutgen's arrest, and throughout his time in prison, the children lived with Ms. Lutgen's brother and sister-in-law, Eugene and Debra Tranel. Upon his release, Mr. Lutgen was granted visitation rights, and he filed for custody the next year. The Tranels opposed his receiving custody. Several witnesses testified for the Tranels, including one who had known the Lutgens for eight years.209 This witness testified that she had seen one of the children with a black eye, bruises on the buttocks of both children, and injuries on Ms. Lutgen. But, as the court noted, she had never witnessed the incidents giving rise to these injuries.
205. Id. 206. In re Lutgen, 177 IM.App. 3d 954, 532 N.E.2d 976 (1988), appeal denied, 125 IIR. 2d 565, 537 N.E.2d 811 (1989). 207. Id. at 969, 532 N.E.2d at 985; see also In re James M., 65 Cal. App. 3d 254, 135 Cal. Rptr. 222 (1976) (father killed mother by stabbing her and then pled guilty to second-degree murder; the court held that the nature of the murder did not prove that the father was unfit for custody). 208. Lutgen, 177 I. App. 3d at 957, 532 N.E.2d at 978. There were no witnesses to Ms. Lutgen's alleged attack on her husband; the two children were in another room and then left the house. The trial court did not have the benefit of Ms. Lutgen's testimony to balance that of Mr. Lutgen. 209. Id. at 958, 532 N.E.2d at 978. Ms. Schonhoff saw Ms. Lutgen virtually every day during the summer and about three times a week during the rest of the year. Id.
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The court noted that "a single criminal conviction, without more, will not support a finding of unfitness based upon depravity." 210 Moreover, it stated, neither Illinois courts nor the state legislature "has seen fit to set forth a rule of law that the killing of one parent by the other in the presence of the children no matter what the circumstances is sufficient to deprive that parent of his or her children on the basis of unfitness."21 As for the domestic violence factor required to be considered as part of the best interest of the child determination, the court decided that the legislature had not accorded this factor any more weight than any other factor.21 2 .Consequently, it refused to overturn the trial court's 13 decision.2 Other courts have similarly examined parental fitness notwithstanding the killing of a spouse. A Pennsylvania court reversed the trial court's decision to terminate a father's parental rights because he had stabbed and killed the child's mother.21 4 The appellate court pushed aside evidence of the spouse abuse as well as evidence that the child feared her father and displayed symptoms of anxiety both before and after visits with him.21 Instead, the court focused on the father's ability to satisfy his daughter's psychological and physical needs by determining whether his "incapacity" was repeated and continuous-the statu21 6 Because the trial tory standard for termination of parental rights.
court had not made sufficient findings of fact as to the continuing nature of the father's incapacity, the case was remanded for a new hearing before a different judge.217 In In re H.L.T. a Georgia appellate court reversed a lower court's decision to terminate the parental rights of a father who pled guilty to
voluntary manslaughter for the death of the mother.2 18 The court
brushed aside the violence, noting merely that the child was deprived by "the death of her mother at the hands of her father," and instead attached great significance to the fact that the father had not abused, 1 9 In addition, the court found injured, or failed to provide for the child.2
210. 211. 212. 213. Id. at 968, 532 N.E.2d at 985. Id. at 970, 532 N.E.2d at 986. Id. at 972, 532 N.E.2d at 987. Id.
214. Bartasavich v. Mitchell, 324 Pa. Super. 270, 471 A.2d 833 (1984). After the killing, the father took the child to a neighbor's house, went home, and stabbed himself with a fork. Id. at 272,
471 A.2d at 834. 215. Id. at 273, 471 A.2d at 834. 216. Id. at 276, 471 A.2d at 836-37.
217. Id. at 275, 471 A.2d at 837. The court found that the trial court incorrectly placed the burden of proof on Bartasavich and admitted evidence beyond that introduced by the parties. This evidence consisted of a psychological report prepared for the criminal proceedings.
218. 219. In re H.L.T., 164 Ga. App. 517, 298 S.E.2d 33 (1982). Id. at 520, 298 S.E.2d at 35.
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that the father was devoted and interested in maintaining contact with the child, was a model inmate who would soon be eligible for parole, and had a job and a home waiting for him upon his release. The court also found persuasive the recommendation by the child's court-appointed guardian ad litem that the court grant the maternal aunt and uncle temporary custody without terminating the father's parental rights.220 Not all courts in termination cases dismiss the relevance of violence.22 ' Courts seem reluctant, however, to terminate parental rights because of spousal violence. It is indeed critical to consider the abusive parent's ability to care for his children, and certainly the length of incarceration has some impact on this capacity. Nonetheless, courts cannot ignore the effect of domestic violence on an abusive parent's parenting abilities, especially when those acts have so completely de222
prived a child of a parent.
220. Id.
221. See supra note 119. Indeed, some termination cases have been strongly influenced by the existence of abuse between the parents. The Georgia Supreme Court unequivocally stated that evidence showing that a father murdered his child's mother was relevant to a.determination of his fitness as a parent. Sturkie v. Skinner, 214 Ga. 264, 269-70, 104 S.E.2d 417, 422 (1958). A later Georgia case similarly terminated a father's parental rights after he murdered his children's mother and maternal grandmother. George v. Anderson, 135 Ga. App. 273, 217 S.E.2d 609 (1975). In In re Adoption of Doe, 99 N.M. 278, 657 P.2d 134 (N.M. Ct. App. 1983), the court's concern centered on the welfare of the child. According to the court, "[tihe murder of the mother by the father struck at the heart of the family. The conviction proved the father's inability to appreciate the impact of his actions on the child and to respect the emotional and physical needs of the child." Id. at 282, 657 P.2d at 138. A West Virginia court found a father unfit under common law, basing its decision predominantly on his history of spouse abuse, which culminated in a conviction for first-degree murder of his wife. Nancy Viola R. v. Randolph W., 356 S.E.2d 464 (W. Va. 1987). After a thorough analysis of the father's fitness as a custodial parent, the court found: "Upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future, and when necessary for the welfare of the child, [the court shall] terminate the parental. . . rights and responsibilities. . . ... Id. at 469 (quoting W. V. CODE 49-6-5(a)(6) (1984)). The court emphasized that, "[a]side from acts of abuse to the body and mind of a child, first degree murder of a child's parent is the ultimate act of savagery to that child." Id. In Hosey v. Myers, 240 So.2d 252 (Miss. 1970), a father was denied custody of his children in favor of their adult, married sister. At the time of divorce, custody was granted to the mother, who subsequently died in a car accident. Id. After the mother's death, the father was denied custody because of a history of "emotional instability" during his marriage-he had beaten his wife and threatened to kill her and the children on several occasions and had threatened to commit suicide-as well as his demonstrated lack of interest in supporting the children and his "prior frenetic and unstable behavior." Id. at 253. 222. See supra subparts ll(B)(2) & (3) for a discussion of the psychology of the batterer and the impact of domestic violence on children.
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Courts and legislatures in all of these cases seek-rhetorically, at least-to make a custody award that is in the best interest of the child. This Article has argued that unless courts consider the impact of parental violence on the child, their decisions will not be in the best interest of the child. Not only must courts assess the violence, they also must accord sufficient weight to it. The cases discussed above illustrate the problems with existing approaches to the inclusion of domestic violence in custody cases. In Lutgen the court actually considered the domestic 23 The violence, according it at least minimal weight in the decision. 2 appellate court, while acknowledging that domestic violence existed between the parents, excused the violence because it thought the father was otherwise fit.224 Thus, mandating consideration of domestic violence does not guarantee understanding its impact.
V. OVERCOMING MYTHS ABOUT DOMESTIC VIOLENCE
For many reasons, domestic violence is a difficult issue for judges to handle. At an evidentiary level, there rarely is corroborating evidence because domestic violence usually occurs inside the home-it is the word of the victim against that of the abuser. Just as in simple rape cases (although custody actions are not subject to a criminal burden of proof), it appears that the woman needs some additional evidence to be persuasive, such as the existence of force.22 5 Moreover, for judges accustomed to examining circumstances that pertain only to the child, or to the child's awareness of certain factors, violence between the parents is a novel factor in the custody equation, requiring the court to examine the marital relationship. Pervasive stereotypes about domestic violence underlie the need for corroboration and the reluctance to consider marital violence. These, in turn, result in both a failure to understand domestic violence and a minimization of evidence of domestic violence. This Part discusses stereotypes about battering, such as the sanctity of marriage and images of the battered woman, and explores how these stereotypes in223. See supra notes 206-13 and accompanying text. 224. In re Lutgen, 177 Ill. App. 3d 954, 970, 532 N.E.2d 976, 986 (1988) appeal denied, 125 Ill. 2d 565, 537 N.E.2d 811 (1989). 225. See S. ESTRICH, REAL RAPE 57-58 (1987). Even showing resistance to the abuse or other corroboration may not be sufficient to prove domestic violence. In In re Lutgen, 177 Ill. App. 3d 954, 532 N.E.2d 976 (1988), appeal denied, 125 Ill. 2d 565, 537 N.E.2d 811 (1989), the court gave little weight not only to the victim's seeking an order of protection, but also to evidence of the victim's bruises (she was not alive to testify on her own behalf); see also Massachusetts Gender Bias Study Committee, supra note 102, at 81 (noting that "[j]udges and jurors expect more corroboration of physical injuries in domestic violence cases than in other serious crimes").
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fluence judicial decisionmaking. This Part then explains how expert testimony can help overcome these stereotypes. A. Myths About Domestic Violence
Bringing domestic violence into the custody courtroom requires courts to overcome the myth that a veil of privacy should shield intimate family matters, such as the physical details of the parents' relationship. It also requires judges to reconsider myths they may have about victims of domestic violence. The tradition of family privacy, of a separate and private sphere for family life, is deeply embedded in the law.22 As Lisa Lerman has pointed out, "[t]he use of mediation to remedy family violence is one contemporary expression of a traditional policy that the state should not intervene in husband-wife conflicts, because the family is 'a private ordering system with a capacity for solving its own disputes.' ,227 Although many states have enacted laws to help battered women, 228 "a great deal of behavior that would be criminal or tortious between stran'229 gers may still be done with impunity within a family. In conjunction with this traditional reluctance to intervene in the family is a focus in custody decisionmaking only on parental behavior that affects the child. 230 This focus, together with no-fault divorce (which excludes evidence of fault), provides a justification for judges to
226. Meier, supra note 36, at 40; see D. RHODE, JUSTICE AND GENDER 125 (1989). One example of judicial reluctance to intervene in the family is the marital rape exemption, which results from "views of 'appropriate relationships' as private, and sex within those relationships as ambiguous and subject to continuing readjustment; judgments that betrayal by an intimate is not a serious harm; and distrust of vindictive, lying women who might use a rape charge as a weapon." S. EsTRICH, supra note 225, at 72. Many contemporary political theorists continue to see the family as beyond justice, as not needing to have principles of justice applied to it. See S. OIUN, JUSTICE, GENDER, AND THE FAMILY 9,
26 (1989). Instead, "[t]he critical rearticulation for legal theory is that the right to privacy is not synonymous with the right to noninterference with actions within the family." Eisler, Human
Rights: Toward an Integrated Theory for Action, 9
HUMAN
RTs. Q. 287, 293 (1987).
The Supreme Court has consistently recognized family privacy rights. E.g., Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (Powell, J., plurality opinion); Meyer v. Nebraska, 262
U.S. 390 (1923); see Olsen, supra note 14, at 847 (stating that "the Supreme Court has recognized a constitutionally-protected right of family privacy"). 227. Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HsAJv. WOMEN's L.J. 57, 77 (1984) (quoting Frank Sander as quoted in Mediation: The Family Connection, 68 ABA J. 783 (1982)). 228. See Oren, The State's Failure to Protect Children and Substantive Due Process:
Deshaney in Context, 68 N.C.L. REV. 659, 713-14 (1990) (explaining how state and federal action on domestic violence during the late 1970s led to a conservative backlash to protect the family from outside intervention; for example, President Reagan closed the Office of Domestic Violence in
1981).
229. Olsen, supra note 14, at 854. 230. See, e.g., Massachusetts Gender Bias Study Committee, supra note 102, at 69.
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reject evidence of domestic violence as irrelevant. By examining only factors that affect the child, courts can continue to ignore the pervasiveness of domestic violence and refuse to peer behind the marital curtain into the domestic violence morass. Judicial reluctance to intervene in the family is also encouraged by a general misunderstanding of domestic violence and battered women.2 ' Because judges may not understand the battered woman's behavior, it is easy for them to dismiss the importance of battering. There is a general belief that if the woman was seriously abused, then 23 2 For exam she would leave; if she stays, then the abuse did not occur. ple, one male judge explained that he did not believe a woman's allegations of abuse because, had the abuse happened to him, he simply the woman was acknowledging that stayed, would have left; because she23 3 occurred. not had abuse the Even if the woman can present credible evidence that she has been beaten, a court may nonetheless dismiss the seriousness of the allegations, may blame the victim for allowing the abuse to continue, or may believe that she consented.23 4 In Blair v. Blair a Vermont court explained its decision to give minimal weight to a woman's testimony that her husband had abused her:
The marital misdeeds that have been attributed to [the husband], most of them, we don't believe. We do recognize that there was a certain amount of misbehavior;
231. See Littleton, supra note 15, at 35-36; Schneider, supra note 15.
[Jiudicial enforcement of [protections for battered women] is often influenced by a common law heritage and cultural stereotypes that treat wives as the property of their husbands and sanction wife abuse. State courts show little understanding of the circumstances under which many judges and court personnel ask battered women what battered women survive .... they did to provoke the violence.
Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong., 2d Sess.,
pt. 1, at 59 (1990) [hereinafter Hearing] (statement of Helen Neuborne and Sally Goldfarb, NOW Legal Defense and Education Fund). 232. See Hearing, supra note 231, at 202 (explaining that expert testimony in battered women self-defense cases can "answer specific questions that are in judges' and jurors' minds of why the battered woman didn't leave her home, why she may not have reported the battery to the
police").
By emphasizing, and isolating, a battered woman's particular actions, society can deny the widespread nature of domestic violence. See West, The Difference in Women's Hedonic Lives: A
Phenomenological Critiqueof Feminist Legal Theory, 3 WIs. WOMEN's L.J. 81, 94-96 (1987) (sug-
gesting that men do not see violence against women).

233. MARYLAND SPECIAL JOINT CoaudrrrsE, supra note 171, at 12 n.36. Another witness testi-
fied that a judge concluded that she had not been abused because he could not believe that a
doctor would commit abuse. Id. 234. In a rape case in which the victim and the defendant had maintained a relationship for almost two years, defense counsel told the jury that the victim was an independent woman, that all sexual relations were consensual, and that the victim had embellished the story. State v. Ciskie, 110 Wash. 2d 263, 751 P.2d 1165 (1988). The trial court admitted expert testimony on battered woman syndrome to help the jury understand the victim's state of mind as to why, notwithstanding the abuse, she did not leave. Id. at 270-80, 751 P.2d at 1169-74.
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that there may be these temper tantrums and items of misbehavior, but the strangling with the hands and violence and threats that were described by [the wife] have been blown way out of proportion 5 as evidenced by the fact that she stayed throughout the four years of marriage.3
Finally, as is the case with child sexual abuse, courts may believe that women are fabricating allegations of abuse either to gain an advantage in legal proceedings or to be vindictive. 3 6 Part of the problem is that people are unable to grasp how victimized women maytend to deny the reality because it is simply too awful to accept. The Blair court ridiculed the woman's allegations of abuse as simply "'blown up by her own hurt with what happened to the marriage.' ,,237 Those who believe that battered women lie about the violence against them fail to understand the impact of domestic violence on the lives of mothers and children, and instead rely on their own stereotypes and beliefs about battered women and their families. Based on misconceptions regarding what types of women are battered or the existence of battering and its effects on children, courts make judgments that may not be in the child's best interest; even if they award custody to a battered woman, they may not adequately protect her with visitation provisions. Battered women and their children need a legal system that accepts their terrifying reality, and that, if it awards the victim custody, also finds it is in the children's best interest to prevent additional battering against their mothers. This is difficult. Judges must find that the battering exists, must accept that this battering affects the child, and
235. Blair v. Blair, 575 A.2d 191, 193 (1990) (quoting the trial court's findings). The appellate court reprimanded the trial judge, stating: "[T]he court's reasons for discrediting the defendant's testimony about domestic violence are ones rendered suspect in the literature on the subject." Id. Although this was a civil case, the court cited cases and articles on the battered woman's syndrome in criminal cases. Id. 236. See Laurino, Ms. Special Report, Custody Wars: Moms Held Hostage, Ms., Dec. 1988, at 88; see also Apel, CustodialParents, Child Sexual Abuse, and the Legal System: Beyond Contempt, 38 AM. U.L. REv. 491, 496 (1989) (explaining that children are often accused of fabricating abuse). The actual incidence of deliberately false allegations in child sexual abuse cases appears to be "exceedingly rare." Thoennes & Pearson, Summary of Findings from the Sexual Abuse Allegations Project, in SExuAL ABUSE ALLEGATIONS IN CUSTODY AND VIsrrTAON CASES 1, 14 (B. Nicholson ed. 1988). Fear of vindictive spouses has also arisen as a rationale in support of rape statutes that do not cover marital rape. E.g., People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207 (1984), cert. denied, 471 U.S. 1020 (1985) (rejecting the notion of a vindictive spouse raising spurious allegations); see also Note, The Marital Rape Exemption, 52 N.Y.U. REv. 306, 314 (1977). Of course, fear of false allegations made in an effort to abuse the legal system is not limited to malicious spouses. See Margulies, The "PandemoniumBetween the Mad and the Bad:" Procedures for the Commitment and Release of Insanity Acquitees after Jones v. United States, 36 RUTGErs L. REv. 793, 804-05 n.73 (1984) (discussing fear of false pleas of insanity in criminal cases). 237. Blair, 575 A.2d at 193.
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238 then must craft decisions reflecting this reality.
B.
Overcoming Myths
To help courts in criminal cases comprehend the circumstances and behavior of the victim, the battered women's movement has succeeded in persuading some courts and legislatures to recognize that jurors need expert testimony on the effects of battering in order to understand the actions of battered women."' It is only recently, however, that such a movement is beginning to affect civil actions outside order of protection 2 40 proceedings. This expert testimony describes both the effect of domestic violence on women and its impact on children. 1 Even familiarity with this expert testimony, however, does not ensure a full picture of the victim. While expert testimony enables courts to begin to appreciate the situation of battered women and their children, the cases "resound with the very sex-stereotypes of female incapacity which women's self-defense work has sought to overcome. 242 This may be a result of having "emphasized the victimized, passive, helpless aspects of the battered woman's experience in order to counter3 '24 act the disabling stereotypes that solely blame her for the violence. The corresponding legal image of battered women is one of passive victims to be helped, rather than fully capable women who have been temporarily affected by the violence against them.244
238. For a discussion of the importance of recognizing the complex realities of children's lives in custody decisions, see Polikoff, supra note 1. 239. E.g., State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984); Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979), conviction on remand af'd, 455 A.2d 893 (D.C. 1983). This evidence describes "battered women's 'different' but common experiences." Schneider, supra note 15, at 214. These experiences are different from the male paradigm on which the best interest of the child standard is based. See West, supra note 232 (suggesting that all of women's experiences are foreign to men); see also Williams, Notes From a First Generation, 1989 U. CH. LEGAL F. 99, 108 (proposing that despite other conflicts between "sameness" and "difference" feminists, they agree that the world is structured according to a male model). 240. See supra note 172 and accompanying text. 241. As discussed supra, there is mixed success on the acceptance by courts of this testimony. See supra notes 15, 239-40 and accompanying text. 242. Schneider, supra note 15, at 197. 243. Id. at 197, 200. 244. Even if lawyers are not emphasizing [learned helplessness], judges are hearing the
testimony in this way . .
.
. [a]lthough the rationale for admission of expert testimony on
battered woman syndrome was to counteract stereotypes of battered women as solely responsible for the violence, testimony is being presented, heard and sometimes misheard, that goes to the other extreme of depicting battered women as helpless victims. ... Id. at 198-99. See Littleton, supra note 15, at 29. Littleton claims the tension that "criminal law theorists identify in battered women's self-defense is between a commonly held image of battered women as passive and the actual action" of battered women who kill. Id.; see also D. RHODE, supra note 226, at 242-32 (stating that "[b]y emphasizing battered women's deviance and dependence, such theo-
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This legal image may exist because there is a tendency to distort "complex, fully nuanced statements (especially statements of positions that people do not really want to face)" and simplify them. This sim24 plification occurs whenever domestic violence is injected into the law. It truly is difficult to understand both why a man batters and why a woman does not leave, unless we also confront additional issues of gender discrimination inside and outside the family.24 7 Full consideration of domestic violence requires taking women's experiences seriously 24 8 and attempting to understand the complicated reality of the battered
family. This does not mean listening carefully and developing one battered woman norm to represent the experiences of all battered women.2 49 It does, however, entail uncovering the context of the lives of 2 50 individual battered women and examining their reality.
VI. INTEGRATING DoMEsTIc VIOLENCE INTO CHILD CUSTODY DECISIONS
Given both the state of the law and its implementation, litigators have adopted strategies to prevent abusers from receiving custody and to restrict the visitation rights of the abusive parent in order to protect the children as well as the other parent. According to one commentator, "[t]he most important issues to raise in a specific case are demonstrable
ries can also reinforce gender stereotypes or divert attention from the frequency of domestic violence and the social conditions that encourage it"). 245. Olsen, Feminist Theory in Grand Style (Book Review), 89 COL. L. REV. 1147, 1176 (1989) (reviewing C. MAcKNNON, FEMINISM UNMODIFIED (1987)). 246. See, for example, Chris Littleton's critique of the battered woman syndrome in Littleton, supra note 15. 247. For example, the social and economic costs of leaving a batterer are substantial. Divorced women are at a severe economic disadvantage in comparison to their economic status while they are married. L. WErrzMAN, THE DIVORcE REVOLUTION 323 (1985); Becker, supra note 102, at 174-76; see Marcus, Reflections on the Significance of the Sex/Gender System: Divorce Law Reform in New York, 42 U. MIAMI L. REV. 55, 71 n.54 (1987) (noting that under New York property distribution law, women received only 30% to 40% of marital property upon divorce). 248. Taking women's experiences seriously is an underlying premise of feminism; "feminism in law means advocacy to end restrictive treatment of all women." Minow, Beyond Universality, 1989 U. CHI. LEGAL F. 115, 116 (1989); see Menkel-Meadow, Feminist Legal Theory, CriticalLegal Studies, and Legal Education or "The Fem-Crits Go to Law School," 38 J. LEGAL EDUc. 61 (1988) (discussing a feminist critique of law school that is based on women's experiences as the oppressed and asserting a woman's right to consideration of domestic violence, which validates her experience of violence and focuses more attention on her situation). See Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U.L. REV. 589, 648 (1986) (addressing how rights claims can strengthen public consciousness on issues underlying the rights). 249. For the dangers of such an essentialist approach, see Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990). 250. See Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN'S RTS. L. REP. 7 (1989) (discussing the importance of looking at the reality of oppression and of using different levels of consciousness); see also Schultz, Room to Maneuver (f)or a Room of One's Own? Practice Theory and Feminist Practice, 14 LAw & Soc. INQUIRY 123 (1989) (discussing the importance of telling new and powerful stories about women's oppression).
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emotional and physical symptoms, including psychosomatic symptoms of the child, fear of the violent parent, and the likelihood of continued violence by that parent."' 251 Nonetheless, it is unlikely under current standards that the abusive parent will be denied visitation or even required to have supervised visitation. 52 There are underlying problems with joining the issues of domestic violence and child custody. First, there is no presumption in custody statutes that battering is not in the best interest of the child. 253 To change this requires a broader appreciation of the impact of domestic violence on children. This will entail using a parent's past behavior as a basis for making custody decisions and recognizing that past abuse demonstrates, at the least, insensitivity to the child and an indication of future actions. Second, and more important, we need to reexamine and reformulate our images of the battered woman in an effort both to understand and accept her, and to question our bizarre tolerance of the abuser's behavior. 4 To some extent these changes have already occurred in civil domestic violence statutes that link the two issues and allow courts to award custody as part of the protection accorded to battered women.2 55 Because these statutes have resulted from initiatives by battered women's advocates, they are more responsive than other statutes to the actual situation of battering. The insights provided by these statutes need to be integrated into the more traditional child custody decisions. Domestic violence in traditional child custody decisions, however, has become a random factor. It is examined by some courts and dismissed by others, even when there is a statutory requirement that the judge consider domestic violence before making a custody award. Currently, it is the individual woman who must raise the issue of domestic violence. There is no widespread recognition of the incidence of violence or of the pressures facing individual women who, intimidated by the batterer and the legal system, may keep evidence of violence out of the courtroom. 25 6 The goal should be adequate analysis of domestic violence and its impact on the child in every case in which there has been abuse.
251. Fields, supra note 11, at 162. 252. Id. 253. Note, supra note 8,at 439. 254. Suzanne Jackson lists the "questions most relevant to battered women" as: "why do men batter women? Why, if these men are so unhappy with their wives as to feel they have to beat them frequently and harshly[,] why don't the men leave? Why do they threaten and provoke the women who love them . . ." S. Jackson, supra note 24, at 38 (emphasis in original). 255. For a listing of such statutes, see Finn, supra note 36, at 63 (table 1). 256. Littleton discussed this in the context of battered women who kill, examining tensions between a battered woman's subjective belief and the social reality of battering. Littleton, supra
note 15, at 37-38.
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As public attitudes toward domestic violence change, so too will legal

2 57 approaches. Similarly, as attitudes expressed by the law change, so
too should behavior. 58 We should not underestimate the expressive nature of the law. The following are some ideas for an agenda of custody reform to show the legal connections between custody and domestic violence. First, severe acts of domestic violence should call into question the fitness of the parent to care for the child. Second, all states should admit evidence of abuse and should train judges to understand the psychological and sociological dimensions of violence. Finally, custody awards should be modified if abuse continues between the parents. The purpose of these proposed reforms is to change how the law conceptualizes and supports depictions of battered mothers. A. Recast Assumptions Concerning Fitness of the Natural Parents
The most basic reform needed is a modification of current presumptions regarding the fitness of the natural parent. One of the assumptions underlying the best interest of the child standard is that the
natural parent is preferred over any third party. 259 This presumption,
however, should not apply when one parent kills or severely abuses the
2 60 other. This type of conduct indicates such fundamental depravity
that it should constitute prima facie unfitness. First, an abuser who has killed the other parent should not be considered a fit parent absent clear and convincing evidence to the contrary. 26 ' This presumption would apply regardless of whether the
257. For example, the battered women's movement has pressured the civil and legal systems to adopt reforms. 258. This has happened in jurisdictions that have adopted mandatory arrest in domestic violence situations. See K. Baker, N. Cahn & S. Sands, supra note 36, at 1-3. 259. E.g., CAL.CIv. CODE 4600(c) (West Supp. 1991) (providing that while a court awarding custody to a parent must merely find that the custody arrangement is not detrimental to the child, in order to award custody to a third party, the court must find that the custody arrangement is in the child's best interest). It is much easier for a parent to receive custody than a third party. 260. This presumption cannot apply to cases in which the state moves to terminate parental rights; in those cases, the Constitution requires that the state prove by clear and convincing evidence that the parent is unfit. Santosky v. Kramer, 455 U.S. 745 (1982). 261. Killing the mother of one's children is generally insufficient to terminate parental rights. Courts often emphasize that killing, in conjunction with another factor, such as abandonment, is necessary to terminate parental rights. See supra notes 200-20 and accompanying text; see also In re Ditter, 212 Neb. 279, 322 N.W.2d 642 (1982); In re Clark, 26 Wash. App. 832, 611 P.2d 1343, review denied, 94 Wash. 2d 1018 (1980); Berg, Are All Murderers Unfit Parents?: Defining "Depravity" in the Illinois Adoption Act, 20 J. FAm.L. 415 (1981-82) (applauding Illinois court decision that a man's conviction for murdering his child's mother, together with an extended jail sentence, should raise a rebuttable presumption of depravity sufficient to terminate parental
rights).
In dicta, one decision of a Georgia state court stated that a father who killed the mother of
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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 2 62 who has experienced a history of abuse kills the other parent. Second, an abusive parent who severely injures the other parent-such that the other parent is hospitalized for more than twentyfour hours, has a broken limb, or is threatened with a gun-similarly should not be considered a fit parent. At a minimum, a natural parent who has severely abused the other parent should be required to prove fitness as a custodial parent by clear and convincing evidence.2 63 This presumption of unfitness would only apply when the severely abusive parent seeks custody; it would not apply when the parent merely seeks visitation, although courts should consider the abusiveness in establish2 64 ing a visitation schedule. B. Admit Evidence of Abuse
As a basic reform to the current structure of child custody decisions, all states should admit evidence of abuse 6 5 in recognition of its relevance to the best interest of the child. In light of the many studies showing the impact of abuse on children, evidence of abuse should affect courts' custody decisions. First, domestic violence harms children. It traumatizes and terrorizes them when they witness their fathers abusing their mothers, and it teaches them that violence is acceptable. Second, a parent's disregard of. the effect of violence on his children indicates that the parent may not be able to care adequately for the children's needs. Finally, women may be disadvantaged because of the 2 66 violence, thus experiencing economic and psychological problems.
their children forfeited any parental rights. George v. Anderson, 135 Ga. App. 273, 217 S.E.2d 609 (1975). Later decisions have repudiated this dicta. E.g., Painter v. Barkley, 157 Ga. App. 69, 70, 276 S.E.2d 850, 851-52 (1981) (refusing to terminate parental rights of father who killed mother); see also In re H.L.T., 164 Ga. App. 517, 298 S.E.2d 33 (1982). 262. Most women who kill their partners have previously been abused. See A. BROWNE, supra note 29, at 10. Ideally, as part of their defense to prosecution, they would introduce evidence of the battered woman syndrome. See Schneider, supra note 15. Even when a criminal court has dismissed evidence and testimony relating to the battered woman syndrome, such evidence is still relevant to custody proceedings in a family court. 263. The New York legislature considered a bill that would shift the burden of proof on parenting abilities to the parent who had battered. Herbst, Long Island Follow-up, N.Y. Times, May 15, 1988, 12LI, at 8, col. 5. 264. See infra notes 272-75, 283-90 and accompanying text for a discussion of visitation rights. 265. Note, supra note 8, at 439.
266.
MARYLAND SPECLAL Joinr CoMmAIrEE, supra note 171, at 38. The Report notes that "[i]f
a court ignores the violence which the mother has suffered and which has been part of the child's
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There are two ways to require courts to consider this evidence: through legislation and through court decisions. Either way, spouse abuse becomes an issue that women can raise routinely 28 7 in custody litigation without fear that a court will dismiss its relevance or even use it as evidence of the unfitness of the mother. As such, it becomes a powerful right for battered women.26 8 There are many sources for such evidence. Evidence could be produced by the victim herself, by other witnesses to the violence, by witnesses to the results of the abuse, or by police who have been called to the scene. One important source of evidence should be the issuance of a 2 " The existence of a civil order of protection within the past ten years. domestic violence order issued within this time period should have some weight in the custody proceedings. It clearly indicates the existence of domestic violence; indeed, it should result in a rebuttable presumption that there has been abuse. If women are to adduce this testimony effectively, however, courts cannot view the introduction of evidence of domestic violence as a hostile act. This necessitates, for example, that those states with friendly parent provisions modify them in order to allow the issue of abuse to be raised without risk that the victim will lose custody. 7 0 Because a woman who raises abuse under a friendly parent provision could be seen as unfriendly, in that her negative view of the other parent would discourage contact between the children and the other parent, courts or legislatures should clarify that existing friendly parent provisions are irrelevant when one parent accuses the other of abuse. Finally, domestic violence is relevant to the custody decision to rehome environment, the court may make a custody determination which is detrimental to the children as well as the mother." Id. 267. As discussed supra notes 236-37 and accompanying text, there may be concern that one parent will raise the issue of spouse abuse simply as a bargaining tool. There is no evidence to support this allegation. In a somewhat comparable situation, a charge of child sexual abuse is raised in only 2% of all custody cases. Fathers raise the charge 22% of the time and third parties raise it in another 11% of cases. Laurino, supra note 236, at 90. 268. I use the term "rights" with some caution, given the debate over the usefulness of rights. See Schneider, supra note 248; Symposium, A Critique of Rights, 62 Tax. L. REV. 1363 (1984); Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARM. C.R,-C.L. L. REv. 401 (1987). Nonetheless, I believe that rights imply legal recognition and may lead to enforcement-actions that battered women need. 269. See Finn, supra note 36, at 64-65 (table 1), for a summary of the maximum duration of civil protection orders by state. Because a civil protection order expires within a relatively short period of time, women who want permanent custody must file for more permanent awards. There are no statistics regarding the number of women who receive civil orders of protection and subsequently file for custody. 270. See Bartlett & Stack, supra note 13 (arguing that parents who oppose joint custody should not be penalized under friendly parent provisions, and citing cases in which mothers have won sole custody, notwithstanding their objections to joint custody).
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but any charges that the mother has abandoned her children by leaving her husband, an act which otherwise might show that she should not be the custodial parent. Judges often view a woman's flight from battering without taking the children as evidence that the mother does not care 2 1 Instead, leaving without the children should be about the children. viewed as a somewhat rational decision to save her life in the midst of her abuser's violence. Otherwise, women face a Hobson's 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 in conjunction with the more fundamental issues discussed earlier. C. Visitation Because of the potential for abuse inherent in transferring children between parents, there should be limits placed on visitation in order to protect the victim. According to the Nevada Supreme Court Task Force, "[b]attered women have a real need for supervised visitation or for visitation arrangements at safe, accessible public places. Successful completion of professional counseling ought to be considered as a condi2 2 7
tion prior to permitting some unsupervised visitations. In most
states it is difficult to deny visitation completely to the noncustodial parent absent legislation or extraordinary circumstance. In states with appropriate legislation, judges nonetheless may choose not to im27 pose limits on visitation.
271. The following case example illustrates this problem: Gloria ran away from home unexpectedly one afternoon when her drunken husband began beating her. She managed to get outside the house and hide in the surrounding woods. Soon she heard him coming after her, shooting his 357 Magnum while shouting obscenities and demands for her to return. Her three young children were inside the house. Since he had never physically harmed them before, Gloria chose to leave them and flee to safety, fearing for her own life. The judge gave custody to her batterer, angry that she had not rescued the children, too. Walker & Edwall, supra note 146, at 131. In recognition of this problem, domestic violence manuals for practitioners stress the importance of the victim obtaining both physical and legal custody prior to any court hearing on permanent custody. E.g., HousE OF RuTH Domrmc VIOLENCE LEGAL CLNIc, Dolsnc VIoLENcE TPAINiNG MANUAL 53 (1989); WOMEN'S LEGAL DEFENSE FUND, LEGAL Rauwmas FOR DoMESTIc RELATIONS CiusEs IN THE DIsTRICT OF COLUMBIA 38 (3d ed. 1987). 272. Nevada Supreme Court Task Force, supra note 171, at 44. 273. See, e.g., Ranford v. Matczuk, 223 Md. 483, 164 A.2d 904 (1960); see also Kim v. Kim, 208 Cal. App. 3d 364, 256 Cal. Rptr. 217 (1989). In Kim the father shot and paralyzed the mother and sexually abused their daughter. The court awarded him reasonable unmonitored visitation. Finally, after subsequent psychiatric evaluations, his visitation was restricted. 274. The Minnesota gender bias task force found that even under an order of protection act that authorized restrictions on visitation, "[b]attered women and advocates expressed concern that some judges do not issue orders for supervised visitation because they fail to understand the dynamic of an abusive relationship." Minnesota Supreme Court Task Force for Gender Fairness in the Courts, 15 WA. MrrcmL L. Rav. 825, 879 (1989).
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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 should order restrictions on visitation under the best interest of the child standard. The House of Ruth Domestic Violence Legal Clinic suggests that the following are conditions that may be imposed to allow the abuser to exercise visitation rights, yet still protect the victim:
1. Specify the hours and days of visitation and prohibit contact at other times; 2. Condition visitation upon participation in batterer's counseling; 3. Use a third party to transport the children and serve as an intermediary for the parents; 7. Require the abuser to provide notice of a day or more before exercising visitation rights; and 8. Provide that visitation may be denied if the abuser is more than 30 minutes late. 75
Notwithstanding the reasonableness of these conditions, they will be set only if the victim has made clear the link between the children and the violence, and if the judge has decided to prevent the abuser from continuing harassment through his access to the children. D. Train Judges For judges to understand fully the link between domestic violence and custody decisions, they need better training regarding the nature of domestic violence. States can mandate specialized training for all judges who hear custody cases. This training must 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, 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
275. HousE OF RUTH DoMESTic VIOLENCE LEGAL CLINIC, supra note 271, at 64. In its sample Complaint for Absolute Divorce, the House of Ruth includes a request for visitation supervised by a third party. Id. at 148, 151. 276. Judges are often uninformed about domestic violence and find that, unless abusers have hurt the children, woman abuse is irrelevant. Yupcavage Statement, supra note 97, at 4; see Germane, Johnson & Lemon, supra note 11, at 198-99 (suggesting that staff from local battered women's shelters may be best able to train judges); see also Hearing,supra note 231, at 73 (recommending that because of the pervasiveness of myths about violence against women, judges need "extensive information and training" about these issues).
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gender bias. 11 With this background, judges can be more effective both at identifying when there is domestic violence2 8 and at ordering trial procedures and custody arrangements that are in the best interest of 2 19 the child, yet also protect the abused parent when necessary. In order to institutionalize consideration of domestic violence, a state could require all judges in custody determinations to inquire 8 and then about the existence of domestic violence in the relationship,2 to make written findings concerning the absence or presence of violence. If abuse exists and custody is awarded to the abusive parent, statutes could require judges to find clear and convincing evidence that a custody award to that parent is appropriate. In cases in which the abusive parent does not receive custody, statutes could require judges to set out a visitation schedule that protects the victim and the children."s ' Statutes could further require that judges order visitation op-tions which minimize contact between the two parents.8 2 E. Consider Domestic Violence in Custody and Visitation Modifications 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. 83 Courts consider various factors under each
277. MARYLAND SPECIAL JOINT COMMITTEE, supra note 171, at 42-43. For a sample curriculum, see The Women Judges Fund for Justice Judicial Education Materials (forthcoming 1991). This training would be useful for other people- involved in the court process. For example, mental health professionals used by the courts for custody evaluations are often unaccustomed to handling domestic violence. Walker & Edwall, supra note 146, at 140. 278. Lerman, supra note 227, at 110, gives examples showing how training can help mediators interpret the potentially conflicting responses of abuser and victim to the simple question of whether there had been violence. Similarly, such training can help judges. 279. The Minnesota gender bias task force found that, notwithstanding an explicit prohibition in state law against ordering mediation in custody disputes when there is probable cause to believe that domestic violence has occurred, more than 75% of lawyers surveyed said that judges sometimes used custody mediation in cases involving domestic violence. Minnesota Supreme Court Task Force for Gender Fairness in the Courts, supra note 274, at 861. 280. This is a strategy for mediators suggested in Lerman, supra note 227, at 101-02. 281. One woman told the Maryland Special Joint Committee on Gender Bias that the court had ordered her to reveal the address of the battered women's shelter where she was staying so that her husband could visit their children. MARYLAND SPECIAL JOINT COMMITTEE, supra note 171, at 39 n.48. 282. The particular option chosen in each case will depend on the facts presented; however, there are many practical solutions to the problem of minimizing contact. See supra note 275 and accompanying text. 283. These standards are more fully discussed in Wexler, Rethinking the Modification of Child Custody Decrees, 94 YALE L.J. 757 (1985). See Comment, Recognizing ConstitutionalRights
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standard in the modification determination, much like they do in the initial child custody decision.28 ' Under current standards, although the mental and physical health of the parents is usually a factor, domestic violence is not a factor that must be considered by courts.285 Improved policies would provide that domestic violence should influence requests for, and decisions on, modification of custody and visitation orders. First, a custody award may encourage one parent to 2 88 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 her continued harassment and 28 7 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. Second, in determining an appropriate modification to a visitation or custody arrangement, the court should weigh the father's behavior toward the mother, rather than focusing exclusively on whether the behavior has been directed toward the child, or even on whether the child 8 If abusers know that courts may take action against has witnessed it.28 them if they harass women about their visitation rights, then children will not become pawns between their parents, used by one parent as an excuse to abuse the other. In addition, mothers will be protected from further abuse caused by arrangements for visitation and joint
of Custodial Parents: The Primacy of the Post-Divorce Family in Child Custody Modification Proceedings,35 UCLA L. REV. 677 (1988). The author urges that custody be modified only pursuant to a strict scrutiny test in order to protect privacy and autonomy in the postdivorce family. While such a standard protects custody from modification based on sexual orientation or religious considerations, it is overly protective of family privacy because it fosters a hands-off attitude toward the family, shielding it from a determination of the existence of battering or child abuse. 284. UNIF. MARRIAGE AND DIVORCE ACT 409(b), 9A U.L.A. 628 (1973); see discussion in Wexler, supra note 283, at 760-82. 285. UNIF. MARRIAGE AND DIVORCE ACT 409(b), 9A U.L.A. 628 (1973); see discussion in Wexler, supra note 283, at 760-82. 286. See Capps v. Capps, 715 S.W.2d 547, 549 (Mo. Ct. App. 1986). In Capps the wife asked for renewal of a protection from abuse order and, at the hearing, testified that while the father was picking up the child for a visit, he "yelled and screamed at her, calling her a bitch. She stated she and her son started crying, and then all of a sudden husband 'took off' in his car while wife still had her hands on the frame of the car, resulting in her being thrown against a tree." See also WOMEN's LEGAL DEFENSE FUND, supra note 271, at 36-37. 287. See supra subpart II(B)(3). 288. For example, an abuser who is entitled to reasonable visitation rights may call the woman 10 to 15 times each day, ostensibly in an attempt to arrange visitation; she may feel harassed or terrified by his constant phone calls.
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custody. 89 While adding another reason to permit modification may detract from the desired stability and permanence resulting from a custody order, 9 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 to her, courts should permit modification upon a showing of the continuation of the pattern of violence between the parents.
VII. CONCLUSION
Some of these proposed legal modifications will not necessitate radical changes in custody cases. The custody determination already requires judges to make a series of inquiries to determine the most appropriate custodial arrangement. Given the level of state involvement in the process-the state is, after all, setting the criteria for a custody award and then applying those criteria-an additional inquiry should not complicate the procedure unduly. The goal should remain an expedient adjudication, without compromise of the best interest of the child or the safety of the parent. 91 Ultimately, however, domestic violence requires more fundamental reform to custody decisionmaking. 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 information about parenting skills. It shows that at least one parent has taken actions which are diametrically opposed to the best interest of the child.292 Instead of segregating abuse from custody, there must be systemic recognition that violence is bad for the
289. For example, in Minnesota, if the custodial parent alleges that visitation places her in danger of harm, she can file for modification of a visitation arrangement, and the court must expeditiously hold a hearing to see if modification is warranted. MINN. STAT. ANN. 518.175 subd. 5 (West Supp. 1991). 290. One strong argument in favor of a strict standard for modifying custody decrees is that it would deter parents from seeking modification, thereby allowing the children to adjust to the custodial situation. See Comment, supra note 283, at 717-20. 291. But see Neely, supra note 106, at 173 (stating that an individualized approach to child custody decisionmaking "is intrusive, time-consuming and inherently distortive in its effect"). 292. The inclusion of domestic violence can be criticized because even though it is neutral on its face, it may decrease the number of awards to fathers in both contested custody and joint custody cases. The complaint that this "analysis merely rationalizes standards designed to favor women is a difficult one to refute." Bartlett, supra note 4, at 339. Not to include domestic violence, however, establishes a standard that reflects male experiences by assuming that violence is acceptable and fails to recognize the impact of violence on the family. The goal is not to tolerate violence against women, and not to penalize women because they have been victimized by violence. See Williams, DeconstructingGender, 87 MICH. L. REv. 797, 840 n.179 (1989) (stressing importance of "short-term solutions, such as sex-neutral protections for those disadvantaged by gender").
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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. Laws that legitimate the impact of domestic violence on a woman are also a step toward women's freedom from violence.2 3 These laws recognize battering and its effects on women, and send a message to all abusers that their actions have consequences beyond emotional or physical injury to the victim. Such expressiveness by the law may decrease battering by reinforcing nonviolent behavior and may increase the effectiveness of child custody decisions.
293. See Littleton, supra note 15, at 38 (labeling the "central problems of battering-male violence, male power and gender hierarchy").

VOLUME 44 OCTOBER 1991 NUMBER 5
MICHAEL
D. DANEKER Editor in Chief
JAMES
E. WARD IV Executive Editor
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MURPHY
BENJAMIN J. VERNIA
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+(,121/,1(

Descriptionof the Problem .....................

Victim s ................................... Abusers ................................. Children .................................

CHILD CUSTODY DECISIONMAKING. ..................... STATE RESPONSE ....................................

1042 1046 1046 1049 1049 1053 1055 1058 1062

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INTO CHILD CUSTODY

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CIVIL IMAGES OF BATTERED WOMEN

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VANDERBILT LAW REVIEW

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concerns about domestic violence have been incorporated into child

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PROBLEM OF DOMESTIC VIOLENCE

Description of the Problem

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CIVIL IMAGES OF BATTERED WOMEN

National Woman Abuse Prevention Project (NWAPP) reports:

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& R. CHEROW-O'LEARY, THE STATE-BY-STATE

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CIVIL IMAGES OF BATTERED WOMEN

213, 227 (1984); see Klein, The Dark Side of Marriage,in

JUDGE, LAWYER, VIc-

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CIVIL IMAGES OF BATTERED WOMEN

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chological explanations of the etiology of children's disorders, see P. CAPLAN,

DON'T BLAME MOTHER

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CIVIL IMAGES OF BATTERED WOMEN 2. Abusers

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73. Ptacek, Why Do Men Batter Their Wives?, in

FEMINIST PERSPECTNES ON WIFE ABUSE

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their children were aware of the violence. Id. at 59.

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between the parties. See M.

FIELD, SURROGATE MOTHERHOOD

126-30 (1988). On the other hand,

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CIVIL IMAGES OF BATTERED WOMEN

14.0 21(a) (Vernon Supp. 1991).