Journal Issue: Domestic Violence and Children Volume 9 Number 3 Winter 1999
Laws and Public Policies Affecting Children Exposed to Domestic Violence
Federal and state policies in a wide range of areas affecting families may potentially have an impact on children exposed to domestic violence. These include, at the federal level, domestic violence laws as well as child protection and welfare reform legislation; and at the state level, criminal sanctions against batterers, civil protective orders, child protection laws, and child custody and visitation laws. Very few of these federal and state laws directly address the needs of children exposed to domestic violence, and those that do have not been evaluated to understand their short- and long-term effects on the well-being of these children and their families.Recent Federal Legislation
Three federal laws enacted in the 1990s mandate policy changes that are likely to affect children exposed to domestic violence: (1) the Violence Against Women Act of 1994 (VAWA),62 (2) the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA),63 and (3) the Adoption and Safe Families Act of 1997 (ASFA).64 VAWA directly addresses domestic violence, while PRWORA and ASFA have implications for the substantial number of families affected by domestic violence who are also involved with the welfare and/or child protection systems.
VAWA provides for increased services to battered women, improvements in prosecution of criminal cases involving domestic violence, and support for better law enforcement and other systems' responses to domestic violence. To the extent that these provisions improve battered women's safety and access to support services, they are likely to have a positive impact on these women's children as well. However, as Matthews points out in her article, VAWA's direct emphasis on the needs of children exposed to domestic violence is quite limited. A new VAWA bill introduced in 1999 included provisions that directly and more comprehensively addressed children's needs, but was not enacted. A similar bill will be introduced in 2000. 65
Between 20% and 30% of all families receiving cash assistance through welfare programs (now called Temporary Assistance to Needy Families) also experience domestic violence.66 PRWORA mandates that states impose time limitations, work requirements, and child support compliance on the receipt of cash assistance. The Wellstone/Murray Amendment 67 to PRWORA, passed in 1997, addresses concerns regarding the ability of battered women to meet these new requirements. This amendment allows but does not require states to adopt exceptions to the time limits, work requirements, and child support compliance for domestic violence victims. These exceptions are important because they enable battered women who cannot meet the new requirements to access public assistance. Limited access to public assistance can severely affect a battered woman's ability to leave an abusive situation. 68 Since September 1998, some 49 states have in place some type of domestic violence exception or special procedures for domestic violence victims, though not all are as comprehensive as the amendment's recommendations. 69 Even if not all battered women need or choose to use them, it is important that the exceptions not just be on the books, but be fully implemented by welfare workers and available to all battered women seeking public assistance.70
ASFA shortens the time lines within which CPS must develop permanent placements for children in the child welfare system, and creates fiscal incentives to place more foster children into adoptive homes once parental rights have been terminated. Though ASFA also renews requirements that CPS provide appropriate services to families whose children have been removed so that the children can possibly return home, it is unclear how these requirements are being interpreted by CPS and the courts. Matthews, in her article, raises concerns regarding the ability of battered women to regain custody of their children within the shortened time lines mandated by ASFA. Battered women leaving abusive situations may need more time than the law allows to ensure safety for themselves and their children, recover from the trauma of being battered, find a new home and job, and enhance their parenting skills. If improvements to the family's circumstances are not made within the time line, parental rights may be terminated, when it would be better for the children to stay in foster care a while longer before returning home. However, because appropriate services to battered women and their children are so limited, courts may decide that CPS has not provided the requisite services and grant exceptions to the time lines for these families. Though ASFA's goal of placing foster children in permanent homes more quickly is laudable, decisions regarding placement must include attention to the particular issues families face, and the appropriateness of services provided. Timely services that address the needs of families experiencing domestic violence are likely to result in better outcomes for children who have been both abused or neglected and exposed to domestic violence.State Laws and Policies
State laws provide for protective orders and criminal sanctions against acts of domestic violence, which if properly enforced can help keep battered women and their children safe. Child custody and child welfare policies that do not consider the presence of domestic violence in a family may result in arrangements that are harmful to the children.
Criminal law in all states contains provisions that authorize the arrest and prosecution of those who commit acts of violence, such as battery, assault, kidnapping, and attempted murder.71 Until recently, these laws were rarely enforced in domestic violence cases.72 During the 1980s, however, some jurisdictions developed policies that require police to arrest perpetrators of domestic violence. Other recent legislation expands the range of criminal behaviors related to domestic violence to include intentional harassment of victims through stalking.73 These new trends in state legislation are important because they send a message to batterers and society that domestic violence will not be tolerated,74 and because they make imprisonment of the batterer a possible means of protection for abused women and their children. In addition, research suggests that mandatory arrest policies may be successful in deterring future violence by some batterers.75 Antistalking statutes hold promise of empowering women and law enforcement to interrupt an escalating cycle of violence before an assault occurs.
Civil Protective Orders
Civil courts can issue protective orders prohibiting a batterer from approaching the adult victim, the children, and various locations, such as the home, the victim's workplace, or the children's school. In some states, these orders can also include child custody and visitation arrangements. Battered women may contact law enforcement to intervene if a batterer violates the order. The consequences to a batterer of violating an order vary from state to state.76
A recent study suggests that lack of enforcement by police and courts has limited the ability of protective orders to keep battered women and their children safe.77 Nonetheless, protective orders are commonly used by battered women to protect themselves and their children. Protective orders can be effective only if battered women know they are available and can obtain them, if the orders are tailored to address specific safety needs, and if penalties for violations have sufficient teeth to deter batterers from violating them. Research indicates that battered women are more likely to succeed in obtaining protective orders if they are represented by legal counsel.78
- Courts must be empowered to design and enforce protective orders that comprehensively address the safety needs of battered women and their children. All battered women must have access to affordable legal counsel, so that they can utilize available legal means to protect themselves and their children.
Child Custody and Visitation Laws
Child custody and visitation laws guide family court decisions in divorce cases, regarding where the child will live and whether the child will have ongoing contact with a noncustodial parent. To reach these decisions, courts analyze the particular case circumstances to determine which arrangements will be best for the child. As Lemon states in her article, courts are increasingly considering the presence of domestic violence in making these determinations.79 Nonetheless, there are several trends in current state custody law that can lead to decisions in cases involving domestic violence that are not in the best interests of the children. These trends include: (1) a statutory preference for joint legal custody even when one or both parents object; (2) friendly parent provisions, which allow the court to prefer the parent who appears more cooperative and willing to share parenting; and (3) mandatory mediation.80 Joint-custody arrangements in family situations involving high levels of parental conflict are likely to have detrimental effects on the children.81 Policies that favor the "friendly parent" may lead to custody decisions against the battered mother, if she is unwilling to consider joint custody. Mandatory mediation in domestic violence cases denies the dynamics of power and control that exist in these cases, and that are contrary to mediation goals of cooperation and compromise.82
Some state legislatures are recognizing that policies favoring joint legal custody, "friendly parents," and mandatory mediation may result in decisions and processes inconsistent with the children's best interests, and have adopted exceptions for domestic violence cases.83 In addition, several states have passed new laws that create a presumption against the batterer having custody, and require that the batterer overcome the presumption against him by showing that he is a fit parent. In some states, there is also a presumption against unsupervised visitation for noncustodial parents who have committed domestic violence.84
- In child custody and visitation cases involving domestic violence, courts should consider in their analysis of the best interests of the child the potential impact on the child of ongoing exposure to parental conflict and violence.
Child Protection Policies
Though federal laws heavily influence state child protection laws and practice, states retain a great deal of freedom to define the parameters of state CPS work. Two types of state child protection legislation raise particular concern when applied to families experiencing domestic violence: (1) failure-to- protect laws that allow courts to make a finding of child maltreatment when a parent does not protect her child from harm, and (2) policies that make childhood exposure to domestic violence per se child maltreatment.
Failure-to-protect laws stem from the premise that omissions in a parent's behavior can cause a child harm, and that parents have a duty to keep their children from harm. Filing failure-to-protect petitions against battered women blames the adult victim for the violence, assumes she can stop the violence, and denies the fact that many battered women make calculated decisions to stay with their abusers because they believe leaving could result in homelessness, lack of steady income, or even injury or death at the hands of the batterer.85,86 However, in child protection cases, the juvenile court has jurisdiction over the child only, and applies pressure to parents through the ability to terminate parental rights if child-rearing practices do not improve. This makes it difficult to hold batterers, who may not care about or have parental rights, accountable for the harm their violence causes the children. Under current laws, failure-to-protect claims against a battered woman who wants to retain custody of her children may be the only way to provide CPS protection if the child is in danger. With assessment procedures and services in place to address domestic violence in the family, CPS can assist families in improving the circumstances for the child. Unfortunately, because most CPS agencies do not have specific domestic violence assessment procedures, training for caseworkers, or services, CPS intervention through failure-to-protect claims may result in decisions that are not best for the children.
In an effort to address the potential harm to children exposed to domestic violence, some policymakers are considering whether such exposure should be per se psychological abuse.87,88 Proponents argue that such policies would create a clear mandate for CPS intervention in cases in which children may be psychologically harmed, and would hold batterers more accountable for the effects of their violence by making them per se child abusers.87 Opponents argue that such policies may dissuade battered women from seeking help for fear of losing their children, and may further burden an already overloaded child welfare system.89 Before per se child abuse laws are passed, a thorough investigation of their potential impact is needed. Per se child abuse laws do not give courts and agencies the flexibility needed to assess the particular circumstances of each domestic violence case and determine appropriate interventions based on that case-by-case analysis. In order to adequately address the wide range of circumstances existing within families with domestic violence, multiple, community-based response systems are needed that do not require court or CPS intervention.
- In designing new laws to address the effects of childhood exposure to domestic violence, policymakers should assess the potential unintended negative consequences of these laws and weigh them against the benefits.