Fordham Urban Law Journal
Volume 27, Issue 3 1999 Article
Domestic violence harms children and families. In the past several years, efforts to recognize this harm have led to the passage of new state laws that allow for concurrent criminal and family court jurisdiction in domestic violence cases, mandate arrest in domestic violence situations and require courts to consider domestic violence as a factor in custody decisions. Unfortunately, the heightened awareness of the harm domestic violence causes children has also resulted in a punitive policy towards battered women in the child welfare system. Increasingly in New York City, abuse and neglect proceedings are brought against battered mothers. Their children are removed from them, and the only allegation is abused upon their children’s exposure to domestic violence. This approach has the result of discouraging battered mothers from seeking the services they need to escape domestic violence and often causes further harm to children and families. Charging battered mothers with “failure to protect” implies that they are neglecting their children, because they did not prevent the violence. It places blame upon the mother, the primary target of the violence, for the actions of the abuser. The mother is accused of exposing her children to violence when the exposure is caused by its perpetrator. Ensuring full accountability of the batterer for his actions is one of the central recommendations of this article. This Article advocates a policy and practice that does not punish battered mothers for the risks to their children’s safety caused by the batterer. A policy that more effectively addresses the safety needs of both victim, the child and the battered mother is suggested. It recommends that the institutional players in this system- the Administration for Children’s Service, the Legislature, the Judiciary and the Legal Aid Society’s Juvenile Rights Division- create a structure that places culpability on the batterer and ensures safe and stable environments for children and non-abusive parents.