Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions

Abstract

This 2003 article seeks to take on what was then conventional wisdom, that myriad law reforms over the prior two decades have improved and corrected the law's response to domestic violence. It focuses on family courts' failure to credit and respond appropriately to protective mothers' - mostly battered women's - allegations that fathers are unsafe for the children. It unpacks several "neutral" principles that seem to guide family courts' responses to abuse allegations, arguing that they are mis-guided, and distort the realities of battering and child abuse in these cases. While not seeking to explain family court culture simply in terms of gender bias, it discusses aspects of commonly held views that are intrinsically gender discriminatory. It ends with two "thought experiments" as suggestions for possible mechanisms for challenging and correcting the dominant and non-protective family court culture in these cases.

Keywords: domestic violence, child custody, child abuse, gender bias, family court

JEL Classification: K19, K30, K41, K39