TABLE OF CONTENTS

Volume 21, No. 6, November 1987

Health Care Access Improves After D.C. Hospital's Hill-Burton Audits Reveal Widespread Facility Noncompliance, National Health Law Program .592

Each Hill-Burton-assisted hospital must provide a prescribed annual dollar amount of uncompensated care to certain low-income persons under a facility allocation plan; however, numerous consumer audits have found widespread noncompliance and have been successful in recapturing large amounts of uncompensated care.

New INS Computer Verification System May Create Problems for Aliens Applying for Public Entitlements and State Legalization Impact Assistance Grants, National Center for Immigrants' Rights..... .604 This column discusses a verification process purported to prevent the payment of public benefits to ineligible alien claimants and a federal block grant program to reimburse the states' costs for public assistance, public health, and educational benefits provided to newly legalized aliens.

Leveraging the Resources of the Low-Income Home Energy Assistance Program: Great Potential for Low-Income Consumers, National Consumer Law Center..............612 This column describes efforts in three states to leverage LIHEAP resources into additional assistance for low-income energy consumers through discount programs, refund of the interest value on credit balances, and providing price information to

consumers.

I. Introduction

A battered woman may extricate herself from an abusive relationship only to find herself in a custody battle with her former abuser. He may argue that the violence is irrelevant to custody because it was never directed toward the children. However, violence should be a factor in a custody determination. A history of abuse of the mother by the father generally supports an award of custody to the mother.

Women lose 63 percent of all contested custody cases,' and a battered woman litigating custody faces special problems. A batterer may claim that the mother is psychologically or financially incapable of caring for the children. He may deny the severity of the violence; he may take advantage of trends toward joint custody.

This article will examine why domestic violence militates in favor of awarding custody to the mother, and how a battered woman may win custody of her children. It will review the statutory and case law supporting the view that exposure to violence is damaging to the children's best interests, and will detail psychological findings that interspousal violence has damaging effects on children. It will also discuss the general importance of the primary caretaker in the children's healthy emotional development and then 'scuss the purposes and admissibility of expert psychological evidence concerning domestic violence in custody cases. Finally, it will discuss such strategical considerations as joint custody, mediation, visitation arrangements, and child abduction.

Myra Sun is a Staff Attorney with the National Center on Women and Family Law, 799 Broadway, Room 402, New York, NY 10003, (212) 674-8200. Elizabeth Thomas was formerly a Staff Attorney with Evergreen Legal Services, Seattle, WA, and is now in private practice.

Copyright©1987 National Center on Women and Family Law. All rights reserved.

1. Weitzman & Dixon, Child Custody Awards: Legal Standards and Empirical Patterns for Child Custody, Support and Visitation After Divorce, 12 U.C. DAVIS L. REV. 472, 503, 506, 509 (Summer 1979).

II. Legal Authority Recognizing That Domestic Violence Is Detrimental to Children

Five states have adopted laws that require consideration of a batterer's violence as a factor in intrafamily custody determinations. Arizona and Florida statutes explicitly recognize that spousal abuse is detrimental to the children's best interests; Illinois law is similar and includes child abuse as well.2 In Arizona and Florida, and in California if a civil order of protection has issued, the court must consider supervised visitation or generally order that visitation arrangements protect the victim and the children. Two other states, Colorado and Kentucky, make domestic violence a defense to a claim that the victim abandoned the child.4

Further, a growing body of case law allows evidence of spousal abuse to be admissible in custody determinations, regardless of whether the children witnessed or were old enough to be aware of the violence. In contexts other than parental custody disputes, courts have similarly held that a batterer's violence—usually after he has murdered the mother--has rendered him unfit to exercise parental control over the children."

The facts themselves may show conduct toward the mother that could be found detrimental to the children. Children

2. ARIZ. Rev. Stat. § 25-332B; Fla. Stat. Ann. § 61.13(2)(b)(2); ILL. REV. STAT. ch. 40, § 602(a)(6).

3. CAL. CIV. CODE § 4601.5.

4. See COLO. REV. STAT. § 14-19-124(4); KY. STAT. ANN. § 403.270(2).

5. See Bertram v. Kilian, 331 Wis. 2d 2022, 394 N.W.2d 773 (App. Ct. 1986); Desmond v. Desmond, 134 Misc. 2d 62, 509 N. Y.S.2d 979 (Fam. Ct. 1986); Williams v. Williams, 104 Ill. App. 3d 16, 432 N.E.2d 375 (1982); In re Marriage of Snyder, 241 N.W.2d 733 (Iowa 1976). See also Runsvold v. Runsvold, 61 Cal. App. 2d 731 (1943) (involving abuse of the mother in the children's presence).

6. See, e.g., In re Juvenile Appeal 84-6, 2 Conn. App. 705, 483 A.2d 1101 (1984); Heath v. McGuire, 306 S.E.2d 741 (Ga. Ct. App. 1983); In re Welfare of Scott, 244 N.W.2d 669 (Minn. 1976); In re Sarah H., 106 Cal. App. 3d, 165 Cal. Rptr. 61 (1980); In re Ditter, 322 N.W.2d 642 (Neb. 1982).

may have been injured attempting to intervene; they may have suffered disruption of their routine, such as when the father's violence occurred at a late hour and interrupted their sleep. The mother's injuries may have forced her to move from the household altogether or impaired her ability to prepare meals, transport the children, or otherwise provide day-to-day care. If the victim and children left the home due to violence, the children may have missed school or suffered other academic problems.

When there has been harm to the children, courts have been critical of abusers who deny their responsibility for the injury. The abuser may not see, or may choose to ignore, his responsibility for the harm that the children suffer from violence. For example, he may blame the victim for leaving with the children, even though their departure was prompted by his own misconduct. If the victim left without the children, the batterer may claim that she abandoned them and, if he has temporary custody, deny her visitation- conduct that in itself is disapproved by the courts. To the extent that an abuser's violence destabilizes the children's day-to-day lives, it is detrimental to their best interests and should militate against a custody award to him.

III. Overview of Psychological Research

Psychological studies have revealed three fundamental, interrelated reasons why a battered woman is likely to be a better custodian than her abusive mate. First, a wife-beater's violence damages the emotional health of the couple's children. Second, placing the child with the batterer perpetuates the cycle of violence by exposing them to an environment in which violence is acceptable behavior. Third, the mother probably has better parenting skills because she is more likely to have been the children's primary parent. The following paragraphs review research data showing that, normally, it is in a child's best interest that custody be awarded to the mother when domestic violence has occurred.

A child's social development is damaged from exposure to witnessing domestic violence. Most children are aware of it." Initially, these children experience trauma, shock, fear, and guilt. When a violent incident occurs, they may either try to intervene, subjecting themselves to possible injury, or respond with "immobilized shocked staring, with running away and hiding, or bedwetting and nightmares."10 Preschool-aged children present intense fear, screaming, and resistance to going to bed, identifying nighttime with the occurrence of violence." As children grow older, they feel guilty about their inability to prevent the violence, lose respect for their apparently helpless mother, and feel anger toward her. Boys are aggressive and disruptive, fighting with their siblings and schoolmates; girls become clinging, withdrawn, passive, and anxious. 12

Children of all ages also present somatic complaints, ranging from insomnia, diarrhea, and generally higher rates of illness in infants13 to higher incidence of colds, sore throats, abdominal pain, asthma, headaches, and bedwetting for older children.14 Part of the pattern of spousal abuse may itself involve sleep or nutritional deprivation for the mother or children. 15 Not surprisingly, then, children who are exposed to violence between their parents also experience delayed development of speech, motor, and cognitive skills, and their school performance may suffer. 16

It is true that most children of divorce suffer emotionally and physically as a result of their parents' separation. However, Judith Wallerstein, one of the few researchers to track such children over a period of time, has found that children actually benefit when they are geographically separated from psychiatrically disturbed parents. 17 This finding is consistent with Walker's 1979 study of children who formerly lived in violent homes; they expressed great relief at living with one parent. The damage to a child from living in a violent household, even if the child is not abused himself or herself, should not be underestimated. "This child is, for all intents and purposes, exposed to the same milieu as the battered child.**19

9. See L. WALKER, THE BATTERED WOMAN SYNDROME 559 (1984) (87 percent of mothers reported that children know about the violence) [hereinafter THE BATTERED WOMAN SYNDROME]; Pagelow, Children in Violent Families Direct and Indirect Victims in YOUNG CHILDREN AND THEIR FAMILIES5 55 (Hill & Barnes eds. 1982) (76 percent of mothers reported that the children were physically present during beatings, and others heard them).

10. DAVIDSON, CONJUGAL CRIME: UNDERSTANDING AND CHANGING THE WIFEBEATING PATTERN 119 (1978).

11. Hilberman & Munson, Sixty Battered Women, 2 VICTIMOLOGY: AN INT'L J.5 460, 463 (1977-78).

12. DAVIDSON, supra note 10, at 120-21; Pagelow, supra note 9, at 59; Hilberman & Munson, supra note 11, at 463; PIZZEY, SCREAM QUIETLY OR THE NEIGHBORS WILL HEAR 67 (1974); Alessi & Hearn, Group Treatment of Children in Shelters for Battered Women, in BATTERED WOMEN AND THEIR FAMILIES (Roberts ed. 1984).

13. Alessi & Hearn, supra note 12, at 52.

14. Hilberman & Munson, supra note 11, at 463; Alessi & Hearn, supra note 12, at 52; Pagelow, supra note 9, at 59.

15. Alessi & Hearn, supra note 12, at 51.

16. Westra & Martin, Children of Battered Women, MATERNAL CHILD NURSING J. 41, 52 (1984).

17. Wallerstein, Summary of Past and Current Research Findings 2 (Feb. 1984) (unpublished manuscript).

18. L. WALKER, THE BATTERED WOMAN 30 (1979) [hereinafter THE BATTERED WOMAN].

19. Westra & Martin, supra note 16, at 50.

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