Family Law Commons^™

Women, Children And Domestic Violence: Current Tensions And Emerging Issues

Fordham Urban Law Journal

A symposium in which the conference speakers give a clear and disturbing picture of how we ascribe a kind of omnipotence to mothers vis-a-vis their children. If children are hurt, it is assumed that those at fault must be the mothers, and they are likely to be blamed even when it is the father who strikes the blows, lands the punchers or terrifies the child. Somehow, we imagine they should have been able to snatch the children out of harms way. The answer to this problem ultimately lies in making sure the ways victims of domestic violence think about their …

Baltimore City’S Child-Focused Court, Barbara A. Babb, Judith D. Moran

All Faculty Scholarship

No abstract provided.

The Silent Victims: Children And Domestic Violence, Nancy Ver Steegh

Faculty Scholarship

Few of us would fail to intercede if we happened upon a child being physically attacked. Most of us would shield even an unknown child from witnessing a traumatic event. If we knew that a child might come to harm, such as a toddler playing in traffic, most of us would escort that child to safety. On a personal level, we are committed to the well being of our children. As a society, however, we close our ears to the cries of the children growing up in violent homes. It is now time to give them voice. New research reveals …

The Role Of The Law Guardian In A Custody Case Involving Domestic Violence, Nancy S. Erickson

Fordham Urban Law Journal

A law guardian for a child has an extremely difficult job, one that arguably requires a higher degree of diligence than that of an attorney representing a competent adult. Yet, under New York law, the role of the law guardian for a child involved in a custody is not clearly defined. When domestic violence is involved, the law guardian's role becomes crucial. The role of the law guardian for a child in a custody case involving domestic violence has been expanded as a result of the enactment of chapter 85 of the 1996 Laws of New York. This article outlines …

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

Fordham Urban Law Journal

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's criminal history. When the victim is the child's mother, it seems to be another story. All …

Understanding The Victim: A Guide To Aid In The Prosecution Of Domestic Violence, Jennice Vilhauer

Fordham Urban Law Journal

As one of the most prevalent crimes in the country, domestic violence is one of the most frequently handled cases for prosecutors across the nation. Despite their commonality, however, domestic violence cases can raise the anxiety level of even the most experience prosecutors. There are several causes of such anxiety. First, domestic violence cases are often plagued by evidentiary problems that occur when a victim does not desire prosecution. Second, even in states where mandatory prosecution laws have been enacted, it can still be difficult to successfully prosecute a case when a victim is hostile, uncooperative and acting in direct …

Charging Battered Mothers With "Failure To Protect": Still Blaming The Victim

Fordham Urban Law Journal

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 …

Domestic Violence As A Factor In Custody Determinations In New York State, Hon. Judith J. Gische

Fordham Urban Law Journal

In 1996, the New York State Legislature mandated that rial courts consider the effect of domestic violence in child custody and visitation disputes. In 1998, the legislature amended the law to provide that, under most circumstances, a person convicted of murdering a child's parent shall be denied custody and visitation. The amendment was in response to a growing national trend to give greater attention to the serious effect domestic violence has on children. While the law now conveys the seriousness with which the legislature view domestic violence, many problems inherent in resolving custody and visitation disputes involving domestic violence still …

Stopping New Yorkers' Stalkers: An Anti-Stalking Law For The Millennium, Demetra M. Pappas

Fordham Urban Law Journal

This essay concerns itself with some of the legislative responses to stalking in New York and examines some of the specific anti-stalking provisions of the Clinic Access and Anti-Stalking Act of 1999, recently signed by New York Governor George Pataki. The author interviews Senator Michael A.L. Balboni, Assemblyman Scott Stringer, and the Assemblyman's former Legislative Director Rob Hack, who were all heavily involved in getting the legislation passed, offering a unique perspective.

Gender Difference In Perceiving Violence And Its Implication For The Vawa's Civil Rights Remedy, Renee L. Jarusinsky

Fordham Urban Law Journal

The enactment of the Violence Against Women Act (VAWA) of 1994 was viewed as "a potential vehicle of empowerment" for women, and was a long-awaited morve toward gender equality in the United States. By enacting the VAWA, Congress emphatically expressed a strong commitment to curb and attack the pervasiveness of sex-based violence. In practice, however, the civil rights remdy has fallen short. In the few VAWA cases brought under the civil rights remedy, the "crime of violence" requirement has been interpreted in such a narrow way that it strips the remedy of any effect. While there is confusion as to …

Evidence Issues In Domestic Violence Civil Cases, Jane C. Murphy, Jane H. Aiken

All Faculty Scholarship

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country over the last twenty years.The legal approaches taken to protect battered women and control family violence have resulted in significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and/or visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent's fitness by considering past acts of violence to other family members results in decisions …

Domestic Violence, Substance Abuse, And Child Welfare: The Legal System's Response, Jane C. Murphy, Margaret J. Potthast

Journal of Health Care Law and Policy

No abstract provided.

Domestic Violence, Substance Abuse And Child Welfare: The Legal System's Response, Jane C. Murphy, Margaret J. Potthast

All Faculty Scholarship

This Article begins by exploring and documenting the connections between domestic violence, substance abuse, and child abuse. Part II of the Article examines the legal system's response to child protection cases in which maternal abuse and, in some cases, substance abuse are present. This section begins by describing the shifting theories underlying child welfare in this country. It then contrasts these theories with child welfare practice by reporting the results of a study of eighty-five Child in Need of Assistance (CINA) cases in four jurisdictions in Maryland. Although the study examines a limited sample, the cases examined confirm the strong …

Getting Ahead With Washington's Workfirst Program: Are Battered Women Left Behind?, Wendy Davis

Seattle University Law Review

This Comment will suggest that although the structure of Washington's WorkFirst Act could help victims become self-sufficient, the current implementation of the Act does not adequately address the particular needs of victims. As a result, a victim's chances of achieving financial independence from either the state or her abuser are minimal. Part II of this Comment will give a brief summary of the federal guidelines under which Washington's WorkFirst Act was developed. Part III will outline the requirements of the WorkFirst Act, and in particular, the Act's provisions that address or affect domestic violence victims. Included in this section will …

Assembly Bill To Speed Divorce After Abuse Will Save Many Lives, Bring Needed Reform, Jane C. Murphy

All Faculty Scholarship

No abstract provided.

Prosecutorial Use Of Expert Testimony In Domestic Violence Cases: From Recantation To Refusal To Testify, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This article discusses the use of expert testimony in prosecuting those charged with domestic abuse. Part I provides a background on the need and nature of expert testimony in domestic violence cases and the requirements for the admission of such expert testimony. It traces the development of the role of expert testimony in domestic violence cases from its initial exclusive use as a defense tool to support self-defense claims to its present use by prosecutors to explain a complainant's recantation or other puzzling behavior. Part II discusses the appellate cases that have addressed the admissibility and scope of expert testimony …

Buying Time For Survivors Of Domestic Violence: A Proposal For Implementing An Exception To Welfare Time Limits, Jennifer Mason Mcaward

Journal Articles

With the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Personal Responsibility Act), states have unprecedented discretion in fashioning their social welfare programs.

This Note examines the Personal Responsibility Act, focusing specifically on the statutory language and history of the sixty-month time limit on receipt of benefits and the two optional exceptions states may enact. This examination reveals that the Act contemplates that states have both the power and the support of Congress and the Department of Health and Human Services to implement exceptions for the benefit of survivors of domestic violence.

Given that states may …

Legal Images Of Motherhood: Conflicting Definitions From Welfare "Reform," Family And Criminal Law, Jane C. Murphy

All Faculty Scholarship

Part I of this Article explores the traditional idealized view of motherhood that child placement statutes and court decisions reflect. These laws include statutes and case law in custody disputes between parents and in child protection proceedings under civil and criminal laws where the dispute is between the parent and the state. Part II contrasts the legal construct of motherhood that child placement laws embody with the legal image of mothers in child support and welfare law.

Part III examines the impact of these conflicting images of motherhood on a particular group of mothers -- battered women. Battered women illuminate …

Domestic Violence In Black And White: Racialized Gender Stereotypes In Gender Violence, Zanita E. Fenton

Articles

No abstract provided.

Important Steps And Instructive Models In The Fight To Eliminate Violence Against Women, Elizabeth M. Misiaveg

Washington and Lee Law Review

No abstract provided.

Legal Protection For Victims Of Domestic Violence: A Guide For The Treating Physician, Jane C. Murphy

All Faculty Scholarship

No abstract provided.

Lawyering For Social Change: The Power Of The Narrative In Domestic Violence Law Reform, Jane C. Murphy

All Faculty Scholarship

The role of the narrative or story in legal discourse has been explored and developed in legal scholarship over the last several years. The goals of the various calls for more storytelling in the legal context vary. They generally relate, however, to a desire to move away from exclusive reliance on abstract legal argumentation to persuade. The goals of ‘storytellers‘ are also linked to furthering an understanding of the dynamics of oppression based on race or gender, or both.

The judicial and legislative processes have always included a narrative component. Clinical legal scholarship has also explored the critical role of …

Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer

Faculty Scholarship

The authors' concern that domestic violence reform statutes might not be having their intended effect sparked their decision to evaluate the protective order statutes empirically. The authors therefore distributed a lengthy survey to 843 domestic violence organizations nationwide that helped battered women obtain protective orders. The survey focused on three issues. The first issue was access to the courts: Is the protective order remedy accessible to battered women? The second issue related to the procedures for obtaining orders of protection: Are judges granting orders in appropriate cases, and are they awarding the full range of remedies contemplated by the reform …

Domestic Violence Law Poses Challenges For The Courts, Jane C. Murphy, Judith Wolfer

All Faculty Scholarship

No abstract provided.

Civil Images Of Battered Women: The Impact Of Domestic Violence On Child Custody Decisions, Naomi R. Cahn

Vanderbilt Law Review

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 …

Domestic Violence Against Women: A Comparative Analysis Of Remedies Under The American And Indian Legal Systems, Anita Elizabeth Jacob Ninan

LLM Theses and Essays

The purpose of this thesis is to compare the legal remedies available to women who are the victims of domestic violence in the United States and India and analyze whether the existing laws in the two systems are effective and sufficient in combating this growing problem. Domestic violence against women is a reality. It haunts the female species form the cradle to the grave, manifesting itself in sociocultural crime peculiar to some societies like India, such as female feticide, female infanticide, bride burning dowry deaths, and wife battering (both a developing country like India and an economically developed country like …

Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America, Elizabeth B. Clark

Publications

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …

Defending Battered Women's Self-Defense Claims, Kit Kinports

Faculty Scholarship

This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases.

Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …