Child Witnesses of Domestic Violence: How Should Judges Apply the Best Interests of the Child Standard in Custody and Visitation Cases Involving Domestic Violence

Abstract

Child custody and visitation cases are generally governed by a interests of the standard. This implies that the child's interests should govern the custody and visitation arrangements judges create. However, in cases involving domestic violence, the parents' interests, rather than the children's interests, have guided judges' custody and visitation decisions. Two different perspectives have served as the basis for judges' decisions in the context of domestic violence. First, battered women's advocates argue that children are emotionally and psychologically scarred by witnessing violence between their parents and are at risk of being physically harmed themselves, that battered women are endangered by joint custody arrangements, and that consequently there should be rebuttable presumptions against awarding batterers custody. Second, fathers' rights advocates argue that fathers have a right to custody of their children, and that children benefit from contact with their fathers after divorce. However, in the midst of the battered women's and fathers' rights advocates' rhetoric, children's best interests are often lost. In this Comment, Amy Levin proposes two options that would help safeguard children's interests in child custody and visitation cases involving domestic violence. Levin suggests that mandated treatment for batterers and supervised visitation would protect the rights and safety of children and battered women in custody and visitation cases, while at the same time allowing children the opportunity for continued contact with their fathers. In addition, because judges have little guidance in applying the best interests standard in child custody and visitation cases, especially in the context of domestic violence, Levin proposes that judges have mandatory education and training on domestic violence issues and children's adaptations to divorce. This would help judges make more effective and sensitive custody and visitation arrangements for children from violent homes.