from later fabrication. He should be questioned about the abuse, his complaints about the victim as a parent, his reasons for seeking custody, and the custody and visitation arrangements for which he would be willing to settle.

E. Negotiation

Negotiation can be particularly difficult in abuse cases for several reasons. First, the abused client who is threatened with losing custody to the man who has overpowered her so often in the past may quickly accept disadvantageous property and child support settlements in exchange for custody. Second, opposing counsel may bargain from an incorrect view of the facts, since his or her client is likely to have minimized the violence and perhaps otherwise distorted the situation. Finally, the opposing attorney may be unable to make his or her client accept a settlement that the attorney believes is favorable.

Several strategies may be effective. The opposing attorney should be given proof of the true extent of the violence, of psychological findings on the ramifications of violence for the children, and of the client's responsibility for the violence. The battered client and her counsel should agree that negotiations will occur through the attorneys, thus limiting the client's informal negotiation with the batterer. In addition, the victim's seriousness and strength (qualities in her heretofore unknown to the batterer) will be demonstrated by aggressive legal advocacy and strict adherence to all court orders.

F. Judicial Attitudes: Joint Custody,

Friendly Parents, and Battered Women

137

A number of states now have legislation or case law authorizing joint custody without both parties' agreement. One scholar has suggested that trial judges, who understandably "find custody disputes between parents painful," choose joint custody in order to avoid "the appearance of labeling either parent inadequate and [they] will blind themselves to signs that the parents are unlikely" candidates for joint custody.' This tendency, especially when coupled with judicial reluctance to acknowledge the relevance of domestic violence evidence, creates a particular challenge for counsel who is faced with a batterer's joint custody claim.

Defining joint custody is a difficult threshold issue:

"Joint custody" is used in different and confusing ways. It can mean the equal right to make decisions regarding the child, while the physical custody arrangements remain the same as under a sole custody-visitation order ("joint legal custody'). Or, it can mean the right of each parent to have the child reside with him or her for a substantial amount of time and, during that time, the parent's duty of daily child-rearing responsibilities ("joint physical custody").' 139

138

137. E.g., CAL. CIV. CODE § 4600(b)(1); Beck v. Beck, 86 N.J. 480, 432 A.2d 63 (1981).

138. Chambers, supra note 35, at 566-67.

139. NATIONAL CENTER ON WOMEN AND FAMILY LAW, LEGAL ADVOCACY FOR BATTERED WOMEN 96-7.

142

Most joint custody arrangements are for joint legal custody with primary physical custody in one parent, usually the mother. This often appears to be an acceptable settlement to a victim, who may sense that the batterer will not genuinely take an interest in such issues as choice of the children's doctor or the religion they follow. However, counsel must be certain that she recognizes the other consequences of the term "joint legal custody." It means that the batterer must have access to her address and telephone number. It also gives the batterer power to determine whether she and the children can move from the state, or even where they can live within the state, if the parents must agree on where the children will go to school. 144

143

140. According to Susan Steinman, who has done the only longitudinal studies on joint custody families, these are:

(1) intense, continuing hostility that cannot be diverted from the child;

(2) anger and a continuing need to punish the spouse; (3) history of physical abuse;

(4) history of substance abuse;

(5) fixed belief that the other is a bad parent;

(6) inability to separate one's feelings and needs from those of the children.

Steinman, A Study of Parents Who Sought Joint Custody Following Divorce, 24 J. OF AM. ACAD. OF CHILD PSYCHIATRY 554, 559 (Sept. 1985).

141. Taylor v. Taylor, 508 A.2d 964 (Md. 1986); In re Marriage of Weidner, 338 N.W.2d 351 (Iowa 1983); Braiman v. Braiman, 44 N.Y.2d 584, 378 N.E.2d 1019 (1978).

142. Phear, Beck, Hauser, Clark, & Whitney, An Empirical Study of Custody Arrangements, Joint vs. Sole Legal Custody 7 (unpublished study of 500 divorces in Cambridge, Massachusetts). The study found that only 2 percent of the joint legal custody cases-11 out of 500-also resulted in joint physical arrangements. Mothers retained physical custody 70 percent of the time.

143. See, e.g., Sherry v. Sherry, 622 P.2d 960, 965 (Alaska 1981). See generally the law review articles cited in the National Center on Women and Family Law's Child Custody Task Force Release No. 10, available for $1 from the Center, 799 Broadway, Room 402, New York, NY 10003.

144. See Burchell v. Burchell, 684 S. W.2d 296 (Ky. Ct. App. 1984), in which the court resolved the question of which school the child would attend.

145. See, e.g., CAL. CIV. CODE § 4600(b)(1).

146. In re Marriage of Bolin, 336 N.W.2d 441 (Iowa 1983).

specifying the hours and days of visitation and prohibiting contact at other times;

conditioning visitation upon participation in batterers' counseling or substance abuse treatment;

⚫ restraining the batterer from driving unless he has a valid driver's license and, where the law requires it, appropriate seating for infants;

using a third party to transport the children and to serve as an intermediary for the parents;

using a third party to supervise visits when there is danger of child abuse or child abduction (finding a supervisor is difficult— consider family, friends, clergy, or day care); transferring the children in a neutral, public place such as a friend's home, restaurant, or store;

restraining the abuser from exercising visitation while under the influence of drugs or alcohol;

requiring the abuser to provide notice a day or more before exercising visitation rights;

providing that visitation may be denied if the abuser is more than 15 or 30 minutes late.

1. Uniform Child Custody Jurisdiction Act

The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by all 50 states and the District of Columbia. It determines when one state should defer to an out-of-state custody decree. The UCCJA requires custody petitioners to submit an affidavit, to be filed with the custody petition, regarding the child's residency and other custody proceedings. Practitioners should submit the affidavit in every child custody action to assure that the resulting decree will be enforceable in other states. If a battered woman wants to prevent her abuser from finding her, she should not give the address where she and the children live. Instead, she may attach a statement that the children have lived in the state for at least six months and that the history of abuse makes her fear further violence if their address is disclosed. Alternatively, she may move to waive disclosure of the address, to waive filing the affidavit, or to provide the information at an ex parte hearing.

The UCCJA also creates "emergency jurisdiction," which may enable a battered woman to obtain a temporary custody order in a state where she has taken refuge until a custody action can be filed in her home state. In this way, she can protect herself from child-snatching charges and stay in the new state. Similarly, in a modification action, the custodial parent's departure from the state issuing the decree may also be justified if continued abuse is established. Under these circumstances, the state to which the victim has fled may assert jurisdiction. 150

2. Parental Kidnapping Prevention Act

153

152

The Parental Kidnapping Prevention Act of 1980 (PKPA)ISI was also enacted to deter child abductions. It is premised on a finding that child stealing has harmful effects on children. The PKPA makes the Fugitive Felony Act, 18 U.S.C. § 1073, applicable to state felony parental kidnapping cases, so that the United States Attorney may issue a warrant for the alleged state felon, although the federal complaint is usually dismissed when the parent is apprehended." The PKPA also authorizes use of the Federal Parent Locator Service (FPLS) to locate children in civil and criminal child custody proceedings. All states maintain a parent locator service as part of their support enforcement agencies. The FPLS utilizes information from the Social Security Administration, the Veterans Administration, the Internal Revenue Service, the Department of Defense, the Department of Transportation, and the National Personnel Records Center. States are not required to transmit location requests to the FPLS. If, however, requests are accepted, the request must be made by a court or prosecutor, not by a parent or a parent's attorney. A woman hiding herself and her children should be made aware that the father may use the FPLS to find them.

154

147. See, e.g., Uniform Marriage and Divorce Act § 407. 148. See, e.g., CAL. CIV. CODE § 4601.5.

149. See P. HOFF, J. SCHULMAN, A. VOLENIK, & J. O'DANIEL, INTERSTATE CHILD CUSTODY DISPUTES AND PARENTAL KIDNAP

PING: POLICY, PRACTICE AND LAW (1982) (Clearinghouse No. 35,967).

150. See In re Thorensen, 730 P.2d 1380 (Wash. Ct. App. 1987). 151. Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A. 152. Hoff, Use of the Federal Parental Kidnapping Law, 15 CLEARINGHOUSE REV. 138 (June 1981).

153. Id. at 139-40.

154. Id. at 139.

courts agreed, that the city owes no duty to assure the availability of accessible housing. We reverse.

II. Standing

As a threshold matter, the defendant questions whether the plaintiff organization has standing to challenge the constitutionality of Anytown's land use scheme. In its complaint, Access claims that its members include disabled persons (both residents of Anytown and nonresidents) who would like to reside in private housing, but are precluded because of the lack of available housing accessible to physically handicapped persons. It is apparent from examining the existing case law that the plaintiff organization and its affected members have standing under our state's constitution. Other jurisdictions have granted standing to allow organizations similar to Access to challenge a city's zoning ordinance. See, e.g., Southern Burlington County NAACP v. Township of Mt. Laurel (Mt. Laurel I), 67 N.J. 151, 336 A.2d 713 (1975) (Clearinghouse No. 5632); Suffolk Hous. Servs. v. Brookhaven, 91 Misc. 2d 80, 397 N.Y.S.2d 302 (1977) (Clearinghouse No. 22,010); 1000 Friends of Or. v. Multnomah County, 39 Or. App. 917, 593 P.2d 1171 (1978). As a representative of affected disabled persons, Access for All is clearly an appropriate party to raise the issues presented in this case.2

III. Exclusionary Zoning

The central issue in this case is whether the City of Anytown has a constitutional duty to exercise its police power to regulate land use so as to provide reasonable housing opportunities for physically disabled persons. We hold that the city does have such a duty.

The crux of the plaintiff's argument is that the City of Anytown's failure to provide housing opportunities for physically disabled persons constitutes exclusionary zoning....

The crux of the plaintiff's argument is that the City of Anytown's failure to provide housing opportunities for physically disabled persons constitutes exclusionary zoning contrary to our state's constitution, which restricts the legislative branch to passing laws pursuant to the general welfare of the citizens of our state. The plaintiff relies on the landmark decision of Southern Burlington County NAACP v. Township of Mt. Laurel

2. We note that for purposes of interpreting our state constitution we are not bound by the restrictive approach to standing that has been adopted by the United States Supreme Court. See Warth v. Seldin, 422 U.S. 490 (1975) (Clearinghouse No. 12,739). Of course, some exclusionary zoning claims are appropriate even under the federal standing rules. See Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) (Clearinghouse No. 15,716).

3. Provisions that limit legislative authority to acting pursuant to the general welfare are present in many state constitutions. See, e.g., CAL. CONST. art. 3, § 3; MICH. CONST. art. 4, § 51; N.J. CONST. art. 4, § 6, ¶ 2; N.Y. CONST. art. 17, § 3.

(Mt. Laurel I), 67 N.J. 151, 336 A.2d 713 (1975). The primary issue presented in Mt. Laurel I was whether the municipality's land use scheme unconstitutionally precluded citizens with low or moderate income from residing within the township. The court noted that a zoning ordinance that did not promote the general welfare was invalid under the New Jersey Constitution, N.J. Const. art. IV, § 6, para. 2, and held that: "[I]t is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation." 67 N.J. at 179, 336 A.2d at 725, 727. Ultimately, the court concluded that each municipality has an affirmative duty to provide through its land use regulations a "reasonable opportunity for an appropriate variety and choice of housing... to meet the needs, desires and resources of all categories of people who may desire to live within the boundaries." Id. at 179, 336 A.2d at 728. Several other states have also imposed this type of "Mt. Laurel" obligation on municipalities to provide their fair share of particular types of housing. Arnel Dev. Co. v. City of Costa Mesa, 126 Cal. App. 2d 330, 178 Cal. Rptr. 723 (1981) (invalidating an initiative measure that would have prevented the construction of multifamily buildings on the plaintiff's land); Robinson Township v. Knoll, 410 Mich. 293, 302 N.W.2d 146 (1981) (Clearinghouse No. 31,215) (zoning ordinance that prohibited mobile homes except those located in mobile home parks lacked a reasonable basis and was therefore an unconstitutional exercise of police power); Berenson v. Town of New Castle, 67 A.D. 506, 415 N.Y.S.2d 669 (1979) (Clearinghouse No. 17,680) (zoning ordinance did not provide for community's fair share of multifamily housing).

The defendant city argues that the Mt. Laurel line of cases does not apply to the present litigation because those cases involved housing for persons with low and moderate incomes and should not be extended to housing for physically disabled persons. We disagree.

The importance of adequate housing to all members of society has long been recognized. In the Mt. Laurel I case, the court stated that "[t]here cannot be the slightest doubt that shelter along with food are the most basic human needs." The United States Supreme Court reaffirmed the important role municipalities play in furthering local housing needs in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), in which it stated that "[a] quiet place where yards are wide, people few and motor vehicles restricted are legitimate guidelines in a land use project addressed to family needs." Id. at 9. In Moore v. City of East Cleveland, 431 U.S. 494 (1977) (Clearinghouse No. 19,282), the Supreme Court invalidated a zoning ordinance that defined the term "family" in such way as to make it a criminal offense for a grandmother to live with her two grandsons. Justice Stevens, in his concurring opinion, observed that:

4. The second Mt. Laurel decision, Southern Burlington County NAACP v. Township of Mt. Laurel (Mt. Laurel II), 92 N.J. 158, 456 A.2d 390 (1983) (Clearinghouse No. 5632), is discussed infra, part IV. The Mt. Laurel litigation has generated enormous commentary; most of the more recent work cites earlier discussions. See, e.g., Rice, Exclusionary Zoning: Mount Laurel in New York?, 6 PACE L. Rev. 135 (1986); Rose, The Mount Laurel II Decision: Is It Based on Wishful Thinking?, 12 REAL Est. L.J. 115 (1983); Symposium, Mt. Laurel II, 15 RUTGERS L.J. 513-785 (1984); Symposium, Mt. Laurel II, 14 SETON HALL L. REV. 829-985 (1984).