Protecting New York's children: an argument for the creation of a rebuttable presumption against awarding a spouse abuser custody of a child.

• Author: Kurtz, Lynne R.

Introduction(1)

Domestic violence is the leading cause of injury to women between the ages of nineteen and forty-four.(2) In the United States, a woman is beaten every fifteen seconds.(3) When a mother is battered, it affects more than the intended victim. Recent studies show that children also suffer when their mothers are abused, regardless of whether they witness the abuse.(4) Yet, New York's child custody statute does not do enough to protect these innocent victims of spousal abuse. Unfortunately for the children, custody disputes within the New York courts are steadily on the rise.(5)

The New York State Legislature recently passed a bill which explicitly requires judges to consider evidence of domestic violence in child custody determinations.(6) While acting in the best interests of a child is a step in the right direction, it is not enough. The Legislature must create a statutory presumption against awarding a spousal abuser custody of a child. Only then will the best interests of a child truly be met.

Part I of this Comment details the historical statutory treatment of domestic violence and describes the various types of custody statutes.(7) Part II Summarizes the various studies and literature on the effects on a child who witnesses domestic violence.(8) Part III addresses the growing awareness of domestic violence, nationally and then specifically in New York.(9) Part IV analyzes the deficiencies of the current New York custody statute, Domestic Relations Law section 240.(10) Part V then studies the presumption statutes of other states and concludes that such a statute is needed in New York as well.(11)

1. How State Statutes Address Domestic Violence and Custody

   A change in the treatment of domestic violence by state legislatures has been very recent.12 As the national awareness of the effects of domestic violence has grown, many state governments have recognized the harmful effects of spousal abuse on children. These states have reacted, through their codes, to attempt to better protect children.

   1. History of the Treatment of Domestic Violence and Custody

      Issues such as domestic violence have not always been overlooked in child custody determinations as they sometimes are today.(13) Historically, the morality of parents was considered before custody was granted.(14) Spousal abuse was seen as a form of cruelty, and the abuser was not given custody." With the advent of no-fault divorce in the 1970s, the focus shifted away from suspect immoral behaviors of a parent. A married couple was able to divorce without having to prove the other had done the children any wrong.(16) Courts and statutes turned from assessing parental behaviors toward a standard involving the best interests of the child.(17) Under this standard, courts and legislatures are less concerned with the relationship between the parents, especially if there appears to be no physical effect upon the child.(18) Statutes began favoring joint custody, and fathers were permitted a more active role in raising their children.(19) While this may appear to be a fairer standard for some, in reality it does not benefit mothers and children who were abused by their husbands and fathers during the marriage.(20) Research has shown that the abuse tends to escalate after divorce.(21)

      After many years, domestic violence is once again reemerging as a factor to be considered in child custody decisions.(22) Today there are custody statutes which address domestic violence in forty-four states and the District of Columbia.(23) This change is due to a growing awareness of domestic violence and the detrimental emotional, as well as physical, effects on its victims.(24)

   2. Description of the Custody Statutes

      The majority of state child custody statutes use a best interests of the child standard.(25) Under this standard, the court purports to consider what type of custody arrangement would be best for a child in a particular situation. The best interests standard can be broken down into three categories: (1) instructing a court to determine the best interests of the child;(26) (2) listing factors the court must, or should, take into consideration;(27) or (3) creating a presumption against awarding an abuser custody.(28) The statutes vary greatly in their treatment of this standard.

      1. Best Interests Standard

         In a custody determination based upon the best interests of the child, a court will weigh various factors to determine which parent should be granted custody. These factors are either set out explicitly in a state statute, or have been developed through case precedent.(29) The factors tend to focus on the behavior of the parents in order to grant the more qualified and capable parent custody of the child.(30) Best interests of the child standards may authorize joint or sole custody, or defer that determination to the courts.(31)

         At least forty-four state courts and the District of Columbia require that courts consider domestic violence when making their custody determination.(32) When domestic violence is introduced as a factor in these states, it weighs against an award of custody, or joint custody, to the abuser.

      2. Presumption Standard

         Eleven state statutes create a presumption against awarding a spousal abuser custody of the child.(33) The theory behind this type of statute is that the batterer should not be rewarded for his cruelty.(34) The presumption statutes also differ greatly from state to state, and the presumption against awarding custody to a spousal abuser may be addressed in either a joint or sole custody statute, or a best interests of the child statute.(35) In some states, the presumption may be rebutted by such evidence as successful completion of a batterer treatment program,(36) or extraordinary circumstances which show there is no risk of continuing violence.(37)

2. Studies of the Effects of Spousal Abuse on Children

   A vast amount of research was conducted over the past few decades to study the effects of domestic violence on women and children. Recent studies have focused on the consequences to children who have witnessed the violence between spouses. These studies have concluded that there are serious immediate and future effects on a child who witnesses spousal abuse.(38)

   Studies have shown that children who witness domestic violence suffer many harmful psychological and emotional effects.(39) Areas in which such problems exist include "health[,] socioemotional development[,] and behavior" relating to others.(40) A more recent study, which compared children with no history of domestic violence to children with violent family backgrounds, found that the latter group had borderline to severe behavioral problems, below average adaptive behavior skills, lower reading levels, a significant difference in their social competence and more aggressive responses.(41)

   A 1990 congressional report addressing the issue of domestic violence and custody stated that children who witness abuse "live in an atmosphere of emotional trauma, and are more prone to anxiety, depression, learning disabilities, and delinquency problem."(42) The effects on children may depend on their ages. Children of school-age respond differently depending on their sex.(43) Boys react to violence with aggression, whereas girls become more passive.(44) Younger children experience a decrease in their verbal abilities and an increase in their "cognitive confusion."(45)

   One of the most significant effects of spousal abuse on children is that the children grow to imitate their parents' violent or passive behavior when they become adults.(46) Boys tend to increase their aggressive behavior.(47) One study found that 82% of the abusive husbands studied had grown up in violent homes where they witnessed child abuse and were abused themselves.(48) Forty-four percent of the abusive men studied had witnessed spousal abuse as children.(49) Of the total number of abusive husbands, 70% had been exposed to domestic violence.(50) Girls who witness spousal abuse tend to become more passive, imitating their mother-victim.(51)

   The high correlation between incidents of spousal abuse and child abuse is another important reason that a presumption against awarding an abuser custody must be created. Many studies have shown that men who abuse their wives have a high tendency to abuse their children as well.(52) A court may be unaware that the battered woman may not be the only victim of abuse in the household.

3. Growing Awareness on National and State Levels

   The reappearance of spousal abuse as a factor considered in child custody disputes by the courts and the legislature can be attributed to a general increase in the awareness of domestic violence in our society. There is no single explanation or event which one can point to as the reason for this increase in awareness.(53)

   Congress recently passed a resolution acknowledging a connection between spousal abuse and the negative effects on a child who witnesses the abuse.(54) The resolution creates a presumption that "it is detrimental to the child to be placed in the custody of the abusive spouse."(55) The National Council of Juvenile and Family Court Judges also advised that domestic violence be considered in custody determinations.(56)

   New York State has also seen a growing awareness of domestic violence. In 1994 the Legislature passed the Family Protection and Domestic Violence Intervention Act (Act).(57) This Act overhauls previous New York laws dealing with domestic violence. The Legislature found that "[t]he victims of family offenses must be entitled to the fullest protections of [New York's] civil and criminal laws."(58) Even more recently, the Legislature found it necessary to include domestic violence as a statutory factor in custody determinations.(59)

   The legal profession has also responded to the increase in awareness of domestic violence. New York Court of Appeals Chief Judge Judith S. Kaye recently developed a program, the...