Nicholson v. Scoppetta: Providing a Conceptual Framework for Non-Criminalization of Battered Mothers and Alternatives to Removal of Their Children from the Home

• Author: Amanda J. Jackson
• Position: Student, Capital University Law School
• Pages: 821-868

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I Introduction

The welfare and protection of our children is a significant and crucial concern of society today. One such concern that has been increasing in recent decades is the possible harm inflicted upon children that are exposed to domestic violence. In fact, research suggests that as many as ten million children are exposed to domestic violence each year.¹ Therefore, in response to this growing problem, the legal system has attempted to develop policies and practices, typically implemented through various government agencies and the court system, by which to intervene in domestic violence situations that may affect the welfare of children in the home.

Unfortunately, however, these practices and policies have often had a tendency to harm another particular group of victims of domestic violence-battered mothers. Battered mothers are frequently charged with neglect and have their children removed from the home, and they sometimes even have their parental rights ultimately terminated for exposing their children to domestic violence, even when neither the mother nor the batterer has actually physically abused the children.² The legal system has attempted to address this problematic issue through state and federal legislation and case law, but has not yet been able to create an equitable and consistent policy that is able to both protect children in domestic violence situations from harm as well as uphold the parental rights of battered mothers.

However, the United States Court of Appeals for the Second Circuit is currently considering this issue in Nicholson v. Scoppetta,³ as it has been asked to review the United Stated District Court for the Eastern District New York's ruling preventing New York's Administration for Children's Services (ACS) from prosecuting battered mothers for neglect for exposing their children to domestic violence and removing their children from thePage 822 home.⁴ Importantly, although its decision will only directly affect families within the Second Circuit, specifically in New York, Connecticut, and Vermont, the decision will still have significant and far-reaching consequences for victims of domestic violence and perhaps also affect the future legislative law, court decisions, and public policy created in other states.⁵

This Note advocates upholding the district court's decision and proposes a conceptual framework that should be provided by the Second Circuit to address the issues of whether battered women should be prosecuted for neglect for exposing their children to domestic violence and whether these children should be removed from the home and care of their mothers merely because domestic violence occurred in the home. Specifically, this Note asserts that holding battered mothers responsible for domestic violence and removing their children from the home is a poor legal and public policy. Battered mothers should not be considered neglectful and unfit to parent merely because they have been abused by their significant others in the presence of their children. Rather, the perpetrators of domestic violence should be the ones found neglectful and held criminally responsible for their acts of abuse that both psychologically and physically endangered the mother and the child. Furthermore, this Note advocates that better policies and methods exist that should be developed and implemented to protect children in domestic violence situations from harm before having to resort to violating the rights of battered mothers through prosecution and removal of their children.

Therefore, this Note will begin by analyzing the connection between domestic violence and child welfare. Part II of this Note will give a thorough background of the history of domestic violence in the United States and how abused women have been socially, legally, and psychologically affected by domestic abuse. This part will then explore how such abuse affects children when the woman being battered is also their mother by outlining the development of public concern for child welfare and exploring how this concern affects the concept of the constitutional right to custody of one's children. Finally, this part will examine how the legal system currently addresses the issues of liability of mothers and removal of children from homes where domestic violence has occurred, specifically focusing on current statutes and case law from New York.

Part III of this Note will thoroughly discuss the facts of Nicholson as well as the ruling of the United States District Court for the EasternPage 823 District of New York,⁶ the Second Circuit's first review of the case,⁷ and the New York Court of Appeals' answers to the three certified questions of state domestic law.⁸ This part will then outline the major concerns that are being considered by legislatures, courts, and advocates in determining whether a mother should be held responsible for allowing her children to witness domestic violence in her home as well as whether the best interests of a child who has been a witness to domestic violence are served by removing that child from the home or by permitting the child to remain with the mother.

Finally, Part IV of this Note will discuss how the Second Circuit should address these critical issues. This part will provide a conceptual framework through which legislatures, courts, and child protection agencies should criminalize domestic violence in the presence of children as well as handle removal of children from homes in which they have witnessed their mother being abused by her significant other. In particular, this part will recommend various alternatives to removal of children from homes in which domestic violence has occurred.

II Background

A The History of Domestic Violence in the United States

Wife battering used to be an act that was not only accepted in society, but also permitted under the law.⁹ English common law considered a married man and woman to be legally one entity, and that one was the husband.¹⁰ The husband was responsible for the acts of his wife and could, therefore, control her acts by any means necessary to keep her in line, even through violence.¹¹ It was not until 1853 that the English Parliament finally passed a law against assaults upon women and children, and, eventually, the United States followed this example.¹² By 1880, laws against assault existed in many states, but because they were so rarely enforced, the lives of battered women changed very little.¹³

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Eventually, society and the legal system began to recognize domestic violence against women as a major problem.¹⁴ In fact, feminist leaders of the suffrage and temperance movements singled out wife abuse as a major societal scourge in the 19th and early 20th centuries.¹⁵ However, it was not until the anti-rape movement of the 1970s that the widespread nature of domestic violence was revealed in the public sphere, and a societal effort to protect battered women was initiated through the creation of telephone hotlines, support groups, and shelters for battered women.¹⁶

However, domestic violence was still not treated as a serious crime by the police, which significantly affected abused women's ability to receive protection from abuse through the legal system.¹⁷ Typically, a police officer would not arrest an abuser unless the officer actually saw the abuse take place.¹⁸ However, in 1984, when Tracey Thurman, an abused woman from Connecticut, won a landmark lawsuit against police for violating her Fourteenth Amendment rights, police agencies began treating domestic violence as a more serious crime due to the risk of being held accountable for violating the abused woman's rights, even when the majority of the abuse was not actually witnessed by the police officer.¹⁹ Thurman had made numerous reports to the local police between October of 1982 and June 1983 regarding repeated threats against her and her son's life by her estranged husband.²⁰ However, these reports, the restraining order against her husband, and her requests for police protection were disregarded by police officers.²¹ Ultimately, Thurman was beaten and stabbed by her husband on June 10, 1983.²² She sued the city police department, and the court held that the department was responsible for the attack, as it was their duty to acknowledge her reports and requests and provide protection.²³ Thus, by the mid 1980s, fifteen states and the District of Columbia had passed mandatory arrest laws that required a police officer to make an arrest when called to the scene of a domestic violence complaint.²⁴ Also importantly, by this time, Congress had passed legislation that providedPage 825 federal money to domestic violence programs and shelters, and the surgeon general officially declared domestic violence a major health problem.²⁵

Nevertheless, despite this recognition of domestic...