Weighing The Domestic Violence Factor In Custody Cases: Tipping The Scales In Favor Of Protecting Victims And Their Children

Many new laws and policies are emerging in the area of domestic violence. In 1994, the Legislature passed the Family Protection and Domestic Violence Intervention Act- a complete overhaul of laws dealing with domestic violence in both the civil and criminal arean. The Legislature declared that domestic violence is now a crime. It is unfortunate that batterers are not always consider criminals when they seek custody of their children. If convicted of a stranger crime, courts are known to accord weight to the batterer\u27s criminal history. When the victim is the child\u27s mother, it seems to be another story. All the new reform in the arena of domestic violence addresses the difference between domestic violence and most other assaultive behavior- in the former, the victim and perpetrator have or had an intimate relationship. Custody determinations do not seem to account for this unique aspect. The framework in which custody decisions are made is still the same regardless of the 1996 legislation. Attempts at protection can be assen as interfering with access, and interfering with access may result in award of custody to the abusive parent. The New York law on custody is helpful to children who are exposed to domestic violence, but the negative impact on children must be given more weight when determining custody and visitation. The legislative mandate to give domestic violence weighty consideration is not enough to overcome entrenched attitudes about domestic violence. The language of the statute should be changed to create a presumption against awarding custody to abusive parents so that judge, lawyers, social workers and psychologists will change their behavior accordingly