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Abuse and Discretion: Evaluating Judicial Discretion in Custody Cases Involving Violence Against Women

67 Pages Posted: 13 Aug 2009  

Dana Harrington Conner

Widener University Delaware Law School

Date Written: August 10, 2009


This Article is an exploration of the history and creation of the broad power of the custody trial judge, the unsatisfactory standards applied in custody cases involving violence against women, and our system’s inability to adequately review flawed decisions at the appellate level. The Article deconstructs both the process of judicial decision-making at the trial court level in custody cases involving batterers and the standards applied to these cases at the appellate court stage. In addition, the Article also proposes a multi-level approach to resolving the domestic violence dilemma in a custody case.

History confirms that the custody trial judge enjoys immeasurable discretion to determine what is best for children. The judge’s immense authority begins at the trial court level and permeates the appellate process. This expansive authority appears to be based in part on the significance of custody determinations, what is seen as the trial judge’s special expertise in domestic relations law, and the misguided notion that the trial judge has a superior ability to assess issues of credibility unique to family law cases. As a result, our system’s interpretation of the trial judge’s level of discretion in custody matters appears to be synonymous with the ultimate power and authority to decide the matter beyond regulation.

There is little question that custody is an important legal matter calling for specialized treatment by our courts. Custody determinations are among the most difficult and important decisions judges make in the lives of parents and children. Not only must judges balance the rights, interests, and wishes of parents but, above all, they must ensure the safety and well-being of children. Out of all the custody cases the trial judge faces, those involving domestic violence present some of the greatest challenges to both parental rights and child protection.

Interestingly, the safety and well-being of the child is directly related to the well-being of the parents. In the area of domestic violence the issue of parent safety and stability is particularly significant. The welfare of a child exposed to intimate partner violence is linked to the health, emotional stability, and safety of the abused parent.

Custody cases involving intimate partner violence require special analysis, given the risks associated with domestic violence. Thus, our concept of judicial discretion in custody cases involving domestic violence must be altered. Although the trial judge’s authority may be expansive in nature, it must not be seen as beyond control. Unregulated authority is not only flawed in cases involving violence against women, it is dangerous.

Keywords: Women, Domestic Violence, Intimate Partner Violence, Abuse, Custody, Appellate Review, Judicial Review

JEL Classification: K39

Suggested Citation

Harrington Conner, Dana, Abuse and Discretion: Evaluating Judicial Discretion in Custody Cases Involving Violence Against Women (August 10, 2009). American University Journal of Gender, Social Policy & the Law, Vol. 17, No. 2, 2009; Widener Law School Legal Studies Research Paper No. 09-31. Available at SSRN:

Dana Harrington Conner (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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