Battered Women and Child Custody Decisionmaking
Harvard Law Review, Vol. 106, p. 1597, 1993
25 Pages Posted: 8 Sep 2010
Date Written: 1993
Child custody determinations attempt to create arrangements that are in the “best interest[s] of the child.” Historically, custody decisionmakers considered the morality of parental conduct in fashioning these arrangements. Courts and legislatures used cruelty, including wife abuse, as a ground for denying custody to the abuser. As a corollary to the movement towards no-fault divorce, however, modern child custody law has de-emphasized the morality of the parents in the “best interests of the child” standard. In applying this standard today, many courts refuse to examine violent conduct between the parents unless it has a direct impact on the child. As a consequence, wife abuse is no longer uniformly included as an indicator of parental unfitness.
Courts and legislatures that currently make child custody law in a wife abuse context use approaches that range from ignoring the abuse to presuming that a batterer is unfit for custody or unsupervised visitation. To serve as a descriptive benchmark for evaluating the current state of the law, an extreme version of these possible approaches will be incorporated into two premises. First, a man who abuses his wife cannot be a fit parent because wife abuse is functionally equivalent to child abuse. Second, wife abuse does not necessarily end with divorce because further contact with the abuser through joint custody or visitation provides opportunities for continued violence.
Section B begins by discussing current legal trends in custody determinations against the background of the two above premises. The section then examines various legislative and judicial responses to these trends and analyzes the extent to which these responses are consistent with the two premises. Section C provides statistical and anecdotal support for the two premises. Because wife abuse is a problem that affects the entire family unit, rather than just the relationship between the parents, this section argues that battering should be relevant to custody decisions made under the best interests of the child standard. Thus, those states that effectively equate wife abuse with parental unfitness should be emulated. Similarly, state laws that recognize the danger to a mother from further contact with an abuser should be used as models for reform. Section D analyzes the 1992 Louisiana domestic violence statute, hailed as “the best statute to date in protecting children from spouse abusers.” This section acknowledges that the statute significantly improves custody decisionmaking in the wife abuse context, but argues that additional protective measures are still needed. Finally, section E considers and discounts the risk that custody reforms in a battering context will allow more fraudulent allegations of wife abuse to succeed.
Suggested Citation: Suggested Citation