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Vanderbilt Law Review

Naomi R. Cahn

First Page

1041

Abstract

The purpose of child custody decisions is to develop an arrangement that is in the best interest of the child by awarding the child to one or both natural parents.' The critical factors in determining the child's best interest are those that have a direct impact on the child and the child's relationships. The question of which factors are most relevant to the child's best interest is unsettled,' and the answers that have been developed are "highly contingent social construction[s]." This Article examines one factor that is directly related to children's relation- ships and well-being, yet is rarely included in custody decisionmaking-domestic violence.

Surprisingly, the exclusion of parental violence as a factor in custody decisions is relatively new. Prior to approximately 1970 both fault- based divorce and custody decisions focused on the morality of parental conduct. Courts, as well as state legislatures, used "cruelty" as a basis for divorce and child custody awards,' generally granting custody to the parent who had been the subject of the cruelty and denying custody to the parent at fault. As the focus in custody decisions has changed from parental rights to the best interest of the child, the relationship be- tween the parents has become increasingly irrelevant.

However, state courts and legislatures recently have begun to incorporate domestic violence into custody decisions again. The innovative use of domestic violence in child custody decisions and statutes is reminiscent of the fault doctrine used in earlier cases in that it allows parental conduct to affect an award of child custody. On the other hand, these newer determinations are different because they do not focus on the morality of parental fault, but instead are integrated into the prevailing "best interest of the child" decisionmaking standard through analysis of the impact of domestic violence on the child. The emergence of domestic violence as a factor in custody awards reflects increased public awareness of the impact of battering on children. Legislatures and courts, however, remain reluctant to require that domestic violence influence child custody. The small number of states that have adopted specific domestic violence provisions in their custody statutes and the method by which courts evaluate evidence of violence clearly demonstrate this reluctance. Moreover, even when courts and legislatures have integrated consideration of domestic violence into custody issues, they have failed to capture the extent to which domestic violence complicates the application of existing child custody standards. When it comes to custody decisions, the law punishes and blames battered women for being battered. In particular, the law tends to require litigants to prove that parental violence has a direct impact on a child, thereby significantly limiting the ways the impact of violence can be considered. Instead, because domestic violence is detrimental to children, no custody decision should be made in the best interest of the child without first examining evidence of domestic violence.

This Article discusses the relationship between domestic violence and child custody, and critiques the different approaches through which concerns about domestic violence have been incorporated into child custody decisions. By examining current approaches, it is possible to develop future approaches that more fully address the problems that spouse abuse presents for children. More fundamentally, it is critical to explore the perceptions of domestic violence that underlie its exclusion from the child custody decision. Given that the law is not neutral when it regulates families, we must recognize the attitudes that the law expresses and fosters with respect to domestic violence. When the law does not allow battered women the opportunity to relate their experiences, it expresses specific attitudes toward domestic violence. The effort to understand the picture of battered women underlying current law is comparatively recent and is critical to fostering legal reform.

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