Advancing the best interests of the child: why South Dakota should strengthen its rebuttable presumption against awarding custody to abusive parents.

• Author: Lamprecht, Rebecca S.

Recognizing the necessity to consider domestic violence in awarding child custody, South Dakota, like many states, has adopted a rebuttable presumption against awarding custody to abusive parents. South Dakota's rebuttable presumption, however, still leaves many children vulnerable to being placed in the custody of an abusive parent. One weakness of South Dakota's presumption is the judiciary's lack of understanding of the dynamics of domestic abuse. This lack of understanding makes it difficult for individual judges to apply the presumption when they do not understand what triggers its application. In addition, South Dakota law fails to address how to rebut the presumption and how to apply the presumption in the event that the court finds that both parents have engaged in domestic abuse. South Dakota should address these weaknesses by implementing mandatory judicial training on domestic violence, by specifying how to rebut the presumption, and by addressing how to apply the presumption in the event that both parents are found to be perpetrators of domestic violence. Further, the new ancillary standard in determining the best interests of the child should be repealed in order to return to a child-centered best interests analysis. Passed in 2010, the new standard allows the court in making its custody determination to consider whether one party has ever falsely reported that the other party abused the child. This new standard embarks on the dangerous territory of focusing on the shortcomings of the parents, rather than focusing on the best interests of the child.

1. INTRODUCTION

   In 1997, South Dakota adopted a rebuttable presumption against awarding custody to abusive parents. (1) When first adopted, the rebuttable presumption had a limited reach and only applied in cases where a parent had been convicted of domestic violence or assault against a household member. (2) Recently, the rebuttable presumption has been expanded to apply in cases where a parent has a history of abuse. (3) Yet, the statutory text still leaves many questions unanswered, such as how the presumption is to be rebutted and how the presumption should apply in the event that the court finds both parents have a history of domestic abuse. (4) In addition to the shortcomings of the rebuttable presumption, South Dakota's best interests standard now includes the consideration of false reports of child abuse. (5) The addition of this factor to the best interests analysis creates a custody framework that is more parent-centered rather than child-centered. (6) In order to ensure that children are being placed in safe homes, South Dakota needs to implement additional changes to strengthen its rebuttable presumption statute and eliminate extraneous considerations of parental behavior that have no bearing on the well-being of the child from the best interests analysis. (7)

   This comment will examine South Dakota's rebuttable presumption against awarding child custody to abusive parents and suggest ways to improve the rebuttable presumption in order to better protect the safety of children in custody disputes. (8) First, this comment looks at the importance of considering issues of domestic violence in child custody hearings. (9) Next, it will discuss the historical development of rebuttable presumptions against awarding custody to perpetrators of domestic violence (10) and then compare and contrast modem rebuttable presumption statutes of other states. (11) This article also examines how rebuttable presumption statutes coincide with the application of the best interests standard, which is used by most states to determine which parent shall be awarded custody. (12) In addition, it provides an overview of the history and application of South Dakota's custody standards, including the rebuttable presumption against awarding custody to abusive parents. (13) Finally, this comment concludes by discussing suggestions that could help strengthen South Dakota's rebuttable presumption, (14) followed by a discussion about how the best interests standard can be improved to better protect children of abusive parents. (15)

2. BACKGROUND

   1. THE CONSIDERATION OF DOMESTIC VIOLENCE IN CUSTODY CASES

      Since domestic violence continues to be a prevalent problem that has a profound impact on family law, the consideration of domestic violence in custody determinations is imperative. (16) An estimated 25 to 50 percent "of disputed custody cases involve [domestic violence]." (17) Domestic violence should be given proper consideration in custody cases in order to protect the wellbeing of children who may suffer devastating and long-lasting emotional, psychological, physical, and cognitive effects from witnessing or enduring domestic violence. (18)

      1. The Prevalence of Domestic Violence

         While both men and women may fall victim to domestic violence, a national survey has shown that women are more likely to be targets of domestic violence than men. (19) Research has shown that men perpetrate "'severe acts' of violence more frequently than women and also 'injure their partners more seriously.'" (20) Research has shown that over half of the perpetrators who abuse their partners also physically abuse their children. (21) Generally, "the risk of physical abuse of children by a batterer rises with the severity and the frequency of [the batterer's] violence toward [their] partner." (22) Even when the batterer has only previously directed violence toward their intimate partners, children who are present during a confrontation may inadvertently become the target of domestic violence. (23) While not all children of battered women are abused, advocates argue that exposing minor children to acts of domestic violence is, in Itself, child abuse (24) because of the calamitous effects it can have on a child's psychological, emotional, and physical well-being. (25) Research has shown that children who witness domestic violence may experience "anxiety, depression, increased aggression, and even Post Traumatic Stress Disorder." (26) Those children who observe domestic violence may also experience a range of emotions, including fear, confusion, guilt, hopelessness, and powerlessness. (27) In addition, research has shown that children who have been exposed to domestic violence tend to "score significantly lower on measures of verbal, motor, and cognitive skills than children who are not exposed to domestic violence." (28)

      2. Continued Violence After Parental Separation

         Physical domestic violence does not necessarily end with separation. (29) "Research has shown that physical abuse, stalking, and harassment continue at significant rates post-separation, and they may even become more severe." (30) Furthermore, batterers are likely to abuse more than one of their partners throughout their lifetime, leaving children from previous relationships continuously exposed to the batterer's violence against their new partners in the event the batterer is awarded custody or liberal visitation. (31) Thus, understanding the dynamics of domestic violence and recognizing the dire effects that it has on children is crucial to making safe custody determinations. (32)

   2. THE HISTORY OF REBUTTABLE PRESUMPTIONS AGAINST AWARDING CUSTODY TO BATTERERS

      Noticing the failure of state courts to consider evidence of domestic violence in custody disputes, Congress passed a concurrent resolution that encouraged states to adopt a rebuttable presumption against awarding custody to abusive parents in 1990. (33) In the concurrent resolution, Congress acknowledged that joint custody awards provide batterers with continual access to their ex-spouse, and that "a batterer's violence toward an estranged spouse often escalates during or after a divorce, placing both the abused spouse and children at risk through shared custody arrangements and unsupervised visitation." (34) In addition, Congress recognized the detrimental emotional, social, and physical effects that witnessing domestic violence can have on children. (35) In light of these findings, Congress recommended that "for purposes of determining child custody, credible evidence of physical abuse of a spouse should create a statutory presumption that it is detrimental to the child to be placed in the custody of the abusive spouse." (36)

      Shortly after Congress passed its concurrent resolution encouraging states to adopt rebuttable presumptions against awarding custody to perpetrators of domestic violence, the National Council of Juvenile and Family Court Judges published the Model Code on Domestic and Family Violence in 1994. (37) The goal of the Model Code was to protect victims of domestic violence and prevent future violence from occurring. (38) The Model Code included a section entitled, "Presumptions concerning custody," which provides:

      In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence. This section of the Model Code provided states with the necessary framework to draft their own rebuttable presumptions against awarding custody to perpetrators of domestic violence. (40)

      Minnesota was the first state to enact a rebuttable presumption statute against awarding custody to abusive parents. (41) Approved on May 3, 1990, Minnesota's rebuttable presumption statute applies only to joint custody cases. (42) Minnesota's statute created a rebuttable presumption that awarding "joint legal or physical custody is not in the best interests of the child if domestic abuse ... has occurred between the parents." (43) On March 14, 1991, North Dakota became the second state to adopt a rebuttable presumption statute. (44) North Dakota's statute provides that if the...