GPSolo Magazine - March 2006
Domestic Relations Law
Representing Children in Civil Cases Involving Domestic Violence
This article explains the current status of the law in custody and civil protective order cases with regard to substantive decisions and representation for children. It also proposes recommendations regarding legal representation and other services for children, statutory changes for jurisdictions, and decision-making guidelines for civil cases with domestic violence issues.
Current status of the law. Today, the District of Columbia, four U.S. territories, and every state except Connecticut require courts to consider evidence of domestic violence as relevant to custody decisions. Another emerging trend is the adoption of statutes that create a rebuttable presumption against custody to a perpetrator of domestic violence. Within these jurisdictions, however, court proceedings vary greatly, and many jurisdictions fall into more than one category. Thirty-two jurisdictions have statutes that include domestic violence as a best-interests factor that courts must consider, and another 21 jurisdictions have statutes that require courts to consider evidence of domestic violence if alleged. Connecticut is the only state that does not statutorily require courts to look at evidence of domestic violence if it is alleged in a custody dispute.
Civil order-of-protection cases offer another opportunity for courts to decide issues related to children’s well-being. For example, 49 jurisdictions allow courts to make custody determinations during a protective order hearing. Only seven jurisdictions lack provisions regarding custody of minor children in their protective order statutes, and only two, Oklahoma and Wisconsin, explicitly deny courts the power to decide custody issues.
Most appointments for child representatives in divorce cases are made at the discretion of the judge. In contrast to divorce cases, statutes governing unmarried parent cases are more likely to require the appointment of a child representative. Jurisdictions also differ on the role the child representative plays when appointed and what kind of training, if any, a child representative must have.
Civil order-of-protection cases are even less likely to require or expressly give the judge discretion to appoint a child representative. In only ten jurisdictions does the protective order statute allow courts discretion to appoint a representative for the child. Four states are unclear with regard to child representation in protective order cases.
Recommendations for the future. Because of the negative effects witnessing domestic violence can have on a child, all jurisdictions should enact laws requiring courts to consider domestic violence allegations that have some supporting evidence as compelling support for appointing a child representative in custody cases. However, a child representative will only be effective if that representative has been educated on both the special issues and dynamics of domestic violence and on the particular jurisdiction’s statutory laws.
Nationwide, changes need to be made to create more nonlegal services for children as well. Therapy and mental health services help reduce both the short-term and long-term effects of domestic violence on children, but only two states—California and Iowa—have statutes in their respective child custody act that allow courts to order parties and children who are victims of domestic violence to receive counseling. Protective order statutes are more likely to provide for professional counseling and treatment to the victim and family members involved in domestic violence than are custody statutes, but they are still the exception.
Services that provide relocation assistance to distance the victim and child from the perpetrator can reduce the amount of conflict and injury. Under current custody statutes, there are no provisions for relocation assistance, although 28 protective order statutes do provide for exclusive possession of the residence to one of the parties. In addition, 13 statutes require the respondent to provide the petitioner and other eligible household members with suitable alternative housing if the respondent remains in the residence.
States need to clarify whether domestic violence refers to physical abuse and whether threats of abuse and destruction of property also qualify. Many statutes fail to address issues related to the primary aggressor when both parties allege domestic violence against each other. Statutes should address this issue with a list of factors that guide the court in its determination of the primary aggressor. Statutes need to clarify how far in the past domestic violence can occur and still be relevant to a custody hearing. Only two states do this, and until more do so, judges are left to determine this on a case-by-case basis. Finally, states that have a rebuttable presumption against custody to a perpetrator of domestic violence must ensure that the relevance of domestic violence is addressed elsewhere in their custody statutes. If not, there is a risk that when the presumption is not activated, courts could ignore domestic violence issues entirely.
Although 49 jurisdictions provide courts with the power to make custody decisions during a protective order hearing, all jurisdictions need to grant courts this power. Protective order statutes should require courts to follow the custody act guidelines because this will create uniformity among decisions made in different courts.
Statutes also need to address visitation and child support in a more uniform way. Forty-three jurisdictions grant courts the power to make visitation decisions during protective order hearings, with 16 of those requiring that visitation ensure the safety of both the child and the petitioners. New York and Oklahoma allow courts to permit or change an already standing visitation order. All jurisdictions should allow for these visitation decisions, and statutes need to make clear that visitation should be granted only in a way that is safe to all parties involved.
State laws that allow children to petition for a protective order only if they are in some kind of intimate relationship with the respondent are inadequate because they arbitrarily ignore categories of respondents and leave the child without a voice. For the jurisdictions that allow a person to petition on behalf of a child, the best statutes are those that allow people within the household and people outside of the household to petition. The best model would seem to be one that allows a minor to petition for a protective order on his or her own behalf if there is a sufficient intimate relationship with the respondent, but also allows either a household member or an outside party to petition on a child’s behalf.
Although many states now have either a rebuttable presumption against custody to a perpetrator of domestic violence or have domestic violence listed as a factor to consider in custody cases, many judicial decisions still do not reflect these laws. Some courts have failed to understand the magnitude of the impact domestic violence has on children. Some have separated the issues of domestic violence from those of fitness to be a parent, arguing that because the perpetrator did not abuse the child, there was no harm to the child and no reason to find that the perpetrator was an unfit parent. Given these misperceptions, judges need to understand the dynamics of domestic violence and have the same kind of training as children’s representatives and lawyers. Most importantly, states need to increase the number of children receiving representation in cases involving domestic violence.
Annette M. Gonzalez is a Civitas Child Law Fellow at the Loyola University Chicago School of Law; she can be reached at email@example.com. Linda M. Rio Reichmann is director of the American Bar Association’s Child Custody Pro Bono Project; she can be reached at firstname.lastname@example.org.
|For More Information about About the Section of Family Law|
- This article is an abridged and edited version of one that originally appeared on page 24 of Family Advocate, Spring 2005 (24:4).
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