Introduction [FN1]

Domestic violence is the leading cause of injury to women between the ages of nineteen and forty-four. [FN2] In the United States, a woman is beaten every fifteen seconds. [FN3] When a mother is battered, it affects more than the intended victim. Recent studies show that children also suffer when their mothers are abused, regardless of whether they witness the abuse. [FN4] Yet, New York's child custody statute does not do enough to protect these innocent victims of spousal abuse. Unfortunately for the children, custody disputes within the New York courts are steadily on the rise. [FN5]

The New York State Legislature recently passed a bill which explicitly requires judges to consider evidence of domestic violence in *1346 child custody determinations. [FN6] While acting in the best interests of a child is a step in the right direction, it is not enough. The Legislature must create a statutory presumption against awarding a spousal abuser custody of a child. Only then will the best interests of a child truly be met.

Part I of this Comment details the historical statutory treatment of domestic violence and describes the various types of custody statutes. [FN7] Part II summarizes the various studies and literature on the effects on a child who witnesses domestic violence. [FN8] Part III addresses the growing awareness of domestic violence, nationally and then specifically in New York. [FN9] Part IV analyzes the deficiencies of the current New York custody statute, Domestic Relations Law section 240. [FN10] Part V then studies the presumption statutes of other states and concludes that such a statute is needed in New York as well. [FN11]

I. How State Statutes Address Domestic Violence and Custody

A change in the treatment of domestic violence by state legislatures has been very recent. [FN12] As the national awareness of the effects of domestic violence has grown, many state governments have recognized the harmful effects of spousal abuse on children. These states have reacted, through their codes, to attempt to better protect children.

*1347 A. History of the Treatment of Domestic Violence and Custody

Issues such as domestic violence have not always been overlooked in child custody determinations as they sometimes are today. [FN13] Historically, the morality of parents was considered before custody was granted. [FN14] Spousal abuse was seen as a form of cruelty, and the abuser was not given custody. [FN15] With the advent of no-fault divorce in the 1970s, the focus shifted away from suspect immoral behaviors of a parent. A married couple was able to divorce without having to prove the other had done the children any wrong. [FN16] Courts and statutes turned from assessing parental behaviors toward a standard involving the best interests of the child. [FN17] Under this standard, courts and legislatures are less concerned with the relationship between the parents, especially if there appears to be no physical effect upon the child. [FN18] Statutes began favoring joint custody, and fathers were permitted a more active role in raising their children. [FN19] While this may appear to be a fairer standard for *1348 some, in reality it does not benefit mothers and children who were abused by their husbands and fathers during the marriage. [FN20] Research has shown that the abuse tends to escalate after divorce. [FN21]

After many years, domestic violence is once again reemerging as a factor to be considered in child custody decisions. [FN22] Today there are custody statutes which address domestic violence in forty-four states and the District of Columbia. [FN23] This change is due to a growing awareness of domestic violence and the detrimental emotional, as well as physical, effects on its victims. [FN24]

B. Description of the Custody Statutes

The majority of state child custody statutes use a best interests of the child standard. [FN25] Under this standard, the court purports to consider what type of custody arrangement would be best for a child in a particular situation. The best interests standard can be broken down into three categories: (1) instructing a court to determine the best interests of the child; [FN26] (2) listing factors the court must, or *1349 should, take into consideration; [FN27] or (3) creating a presumption against awarding an abuser custody. [FN28] The statutes vary greatly in their treatment of this standard.

1. Best Interests Standard

In a custody determination based upon the best interests of the child, a court will weigh various factors to determine which parent should be granted custody. These factors are either set out explicitly in a state statute, or have been developed through case precedent. [FN29] The factors tend to focus on the behavior of the parents in order to grant the more qualified and capable parent custody of the child. [FN30] Best interests of the child standards may authorize joint or sole custody, or defer that determination to the courts. [FN31]

At least forty-four state courts and the District of Columbia require that courts consider domestic violence when making their custody determination. [FN32] When domestic violence is introduced as a factor in these states, it weighs against an award of custody, or joint custody, to the abuser.

*1350 2. Presumption Standard

Eleven state statutes create a presumption against awarding a spousal abuser custody of the child. [FN33] The theory behind this type of statute is that the batterer should not be rewarded for his cruelty. [FN34] The presumption statutes also differ greatly from state to state, and the presumption against awarding custody to a spousal abuser may be addressed in either a joint or sole custody statute, or a best interests of the child statute. [FN35] In some states, the presumption may be rebutted by such evidence as successful completion of a batterer treatment program, [FN36] or extraordinary circumstances which show there is no risk of continuing violence. [FN37]

II. Studies of the Effects of Spousal Abuse on Children

A vast amount of research was conducted over the past few decades to study the effects of domestic violence on women and children. Recent studies have focused on the consequences to children who have witnessed the violence between spouses. These studies have concluded that there are serious immediate and future effects on a child who witnesses spousal abuse. [FN38]

*1351 Studies have shown that children who witness domestic violence suffer many harmful psychological and emotional effects. [FN39] Areas in which such problems exist include "health[,] socioemotional development[,] and behavior" relating to others. [FN40] A more recent study, which compared children with no history of domestic violence to children with violent family backgrounds, found that the latter group had borderline to severe behavioral problems, below average adaptive behavior skills, lower reading levels, a significant difference in their social competence and more aggressive responses. [FN41]

A 1990 congressional report addressing the issue of domestic violence and custody stated that children who witness abuse "live in an atmosphere of emotional trauma, and are more prone to anxiety, depression, learning disabilities, and delinquency problems." [FN42] The effects on children may depend on their ages. Children of school-age respond differently depending on their sex. [FN43] Boys react to violence with aggression, whereas girls become more passive. [FN44] Younger children experience a decrease in their verbal abilities and an increase in their "cognitive confusion." [FN45]

*1352 One of the most significant effects of spousal abuse on children is that the children grow to imitate their parents' violent or passive behavior when they become adults. [FN46] Boys tend to increase their aggressive behavior. [FN47] One study found that 82% of the abusive husbands studied had grown up in violent homes where they witnessed child abuse and were abused themselves. [FN48] Forty-four percent of the abusive men studied had witnessed spousal abuse as children. [FN49] Of the total number of abusive husbands, 70% had been exposed to domestic violence. [FN50] Girls who witness spousal abuse tend to become more passive, imitating their mother- victim. [FN51]

The high correlation between incidents of spousal abuse and child abuse is another important reason that a presumption against awarding an abuser custody must be created. Many studies have shown that men who abuse their wives have a high tendency to abuse their children as well. [FN52] A court may be unaware that the battered woman may not be the only victim of abuse in the household.

*1353 III. Growing Awareness on National and State Levels

The reappearance of spousal abuse as a factor considered in child custody disputes by the courts and the legislature can be attributed to a general increase in the awareness of domestic violence in our society. There is no single explanation or event which one can point to as the reason for this increase in awareness. [FN53]

Congress recently passed a resolution acknowledging a connection between spousal abuse and the negative effects on a child who witnesses the abuse. [FN54] The resolution creates a presumption that "it is detrimental to the child to be placed in the custody of the abusive spouse." [FN55] The National Council of Juvenile and Family Court Judges also advised that domestic violence be considered in custody determinations. [FN56]

New York State has also seen a growing awareness of domestic violence. In 1994 the Legislature passed the Family Protection and Domestic Violence Intervention Act (Act). [FN57] This Act overhauls previous New York laws dealing with domestic violence. The Legislature found that "[t]he victims of family offenses must be entitled to the fullest protections of [New York's] civil and criminal laws." [FN58] Even more recently, the Legislature found it necessary to *1354 include domestic violence as a statutory factor in custody determinations. [FN59]

The legal profession has also responded to the increase in awareness of domestic violence. New York Court of Appeals Chief Judge Judith S. Kaye recently developed a program, the Family Violence Task Force, to heighten the court's understanding of domestic violence. [FN60] In addition, a number of law schools have held seminars and symposia focusing on domestic violence issues. [FN61] Furthermore, the Association of the Bar of the City of New York recently held a series of programs on domestic violence designed to educate pro bono attorneys. [FN62]

The high-profile O.J. Simpson murder trial was one important factor that helped contribute to society's changing views about domestic violence. The public was exposed almost daily to the private marital life of a wife-abuser who was also an American icon. The reality that domestic violence exists and is a severe problem that cuts across class lines was brought into the homes of almost all Americans. [FN63] Despite the not guilty verdict, this highly publicized trial opened the public's eyes.

IV. The Best Interests Standard of New York

The custody statute of New York is contained in section 240 of the Domestic Relations Law. [FN64] The statute, until May 1996, stated in pertinent part, "The court must give such direction, between the parties, for the custody, care, education and maintenance of any child of the parties, as, in the court's discretion, justice requires, having *1355 regard to the circumstances of the case and of the respective parties and to the best interests of the child." [FN65]

A. The New Amendment to Section 240 of the Domestic Relations Law

In May 1996, Governor Pataki signed a bill amending the section to include,
Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party . . . and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section. [FN66]

A version of this bill was first introduced in 1988, and at that time called for a presumption that domestic violence is harmful to children. [FN67] The bill passed by the Legislature in 1996 however, merely calls for domestic violence to be considered as a factor in custody decisions. [FN68] The following factors contributed to the inclusion of domestic violence in the amendment to section 240: research proving that witnessing domestic violence harms children; [FN69] the fact that the violence tends to escalate after divorce; [FN70] and the fact that judges may disregard domestic violence in custody determinations. [FN71]

*1356 Under the new amendment to section 240, a court will only consider domestic violence as a factor if an allegation of domestic violence is raised in a sworn petition, complaint or responsive pleading. [FN72] The allegations must then be proven by a preponderance of the evidence. [FN73] While this is a definite step in the right direction, more remains to be done.

B. Shortcomings of a Best Interests Standard

New York State may not deny a natural parent custody of a child absent an "extraordinary circumstance." [FN74] The court has defined extraordinary circumstances to include surrender, abandonment, persisting neglect or unfitness. [FN75] The presence of an extraordinary circumstance does not lead to an automatic termination of a parental custody right. [FN76] Rather, child custody is then influenced or controlled by a best interests analysis. [FN77]

There are many faults to be found with New York's best interests standard. It has been said that "the determination of what is 'best' . . . for a particular child is usually indeterminate and speculative." [FN78] The best interests standard has also been criticized for failing to give clear guidance to the courts. [FN79] Specific problems with a best interests standard include: vagueness of the statutory language; lack of actual gender neutrality, despite statutory gender *1357 -neutral language; and deference of appellate courts to trial court findings. [FN80]

1. Statute Uses Vague Language

The primary problem with the best interests standard is vague language. Courts have described a definition of the best interests standard of Domestic Relations Law section 240 as "elusive." [FN81] This ambiguous language allows the courts to use their discretion in deciding which factors to consider, and how much weight to assign to each. [FN82] Although the court is now required by statute to consider domestic violence as a factor, the court still retains the discretion to assign as much weight to spousalabuse as it chooses. The best interests of a child are not served by such an arbitrary standard.

Before the 1996 amendment, no explicit factors were set out in Domestic Relations Law section 240 for the courts to use as a guide in determining the best interests of the child. [FN83] Over time, case law developed a list of factors which the courts considered, but domestic violence was rarely among them. [FN84] The courts generally mandate that no one factor outweighs another. [FN85] However, a court may give preference to the parent who was first given custody through litigation or a voluntary arrangement. [FN86]

*1358 2. Gender Neutral

Best interests statutes are considered "gender neutral" since the sex of either parent is not an element of the custody decision. [FN87] In reality however, these statutes are often not construed as "neutral" by the courts, and mothers suffer in custody proceedings as a result. [FN88] In order to avoid gender-biased factors such as which parent nurtured the child, as this will often be the mother, the courts might instead turn to a factor such as the economic resources of the parents. [FN89] This tends to disadvantage the mother, since a large wage gap often exists between men and women. [FN90]

Another problem with using gender-neutral terms is that once abuse is present in a relationship, the parties are no longer in a neutral situation. The victim is generally subservient to the abuser, who uses terror and coercion to gain control. [FN91] The woman may be forced to stay in the relationship upon threat of violence, or the abuser uses his power to force the victim to give up some economic benefits in return for custody. [FN92] Sometimes the abuser uses his power over the victim to force her to relinquish custody. In Gloria S. v. Richard B., [FN93] the wife claimed that her husband, who had physically abused her in the past, forced her to sign the agreement relinquishing custody of her son. [FN94]

*1359 3. Appellate Courts Defer to Trial Courts

In New York, the trial court has the discretion to decide cases involving child custody. The appellate court defers to this determination unless the lower court makes some gross error in judgment. [FN95] This deference accorded to the lower court may be detrimental to a victim of spousal abuse because the trial court often does not fully understand the issues involved in domestic violence cases, such as the negative impact spousal abuse has on children. Appellate courts are finally beginning to accord weight to evidence of domestic violence in custody determinations. [FN96] They are also admonishing the lower courts for failing to give domestic violence the weight it deserves. [FN97] However, this is not enough. The recent amendment to Domestic Relations Law section 240 is a beginning, but more revision is needed.

C. Courts Fail to Give Sufficient Weight to Spousal Abuse

1. A Lack of Understanding of Domestic Violence

Many courts do not understand the effects of domestic violence upon children. One reason for this is that judges often "trivialize" domestic violence, or fail to comprehend the nature of a situation where a woman is battered by her spouse. [FN98] A judge, with no education on the effects of domestic violence or perhaps with a personal bias against domestic violence victims, may very well also fail to see the connection between spousal abuse and the dangers this *1360 has on the children who witness the violence. Such a judge would surely miss the effect spousal abuse may have on a child who does not actually witness the violence.

In our society, the affairs of a family exist in a "private" sphere that is often seen as a separate entity beyond the eyes, and reach, of the "public." [FN99] As a result, the government is often unwilling to intervene in a family's affairs when a domestic situation, such as spouse or child abuse, occurs. [FN100] Case law reflects this phenomenon. [FN101]

The common question of many judges, as well as the public, when faced with allegations of domestic violence is, "Why didn't she [the victim] just leave?" This question illustrates a lack of education about domestic violence and its effects, including battered woman's syndrome, a type of post-traumatic stress disorder. [FN102] A victim of domestic violence also may stay in order to protect her children. [FN103] Batterers often threaten to hurt or kill the children if the victim wishes to leave or take the children out of the house. [FN104] Other *1361 reasons battered woman often stay in a violent relationship include culture, religion and financial dependency. [FN105]

Determinations as significant as child custody should not be left to the discretion of a judge who has little knowledge of domestic violence or perhaps still retains personal biases about the victims of spousal abuse, despite education. [FN106] Although the new amendment to Domestic Relations Law section 240 does state that the court must consider evidence of domestic violence, [FN107] judges who do not understand the nature and effects of domestic violence are still left with too much discretion.

2. Failure to Realize the Effects of the Parents' Relationship on the Child

Another reason courts fail to give sufficient weight to spousal abuse when determining custody is that the best interests standard focuses only on the actual relationship between the parent and the child. Thus, actions seen by the courts as not affecting the parent-child relationship directly are not considered significant. [FN108] Often, judges are unaware of the effects of spousal abuse on children, possibly because these effects are not tangible, or possibly because of their own personal biases. An unfortunate consequence of this is that evidence of spousal abuse is often given insufficient weight in a custody proceeding. [FN109] Too frequently, courts find that it is in the *1362 best interests of the child to give custody to a spousal abuser so long as the child was not physically harmed. [FN110]

In Katz v. Katz, [FN111] a New York appellate court found that "[a]lthough defendant abused plaintiff wife in the presence of the child, the only incident directly affecting the child was when defendant threw a television set on the floor when his daughter disobeyed him." [FN112] This is a prime example of how a court may be dangerously misinformed about the effects of spousal abuse on children, especially a child who actually witnesses the violence. The court did not even appear to consider the effect on the child of witnessing spousal abuse. [FN113]

Although Domestic Relations Law section 240 now forces judges to address evidence of domestic violence, judges retain the discretion to give spousal abuse as little weight as they choose. [FN114] The inconsistency of past court decisions underscores the pitfalls of such wide discretion.

The court, in Ostrander v. Ostrander, [FN115] noted that the marriage of the two parties was a "troubled one, characterized by frequent, and sometimes violent, arguments." [FN116] Regrettably, the court failed to go beyond this mere statement to investigate the violence further. Both parties were then found to be fit parents. [FN117] The court upheld the lower court's decision to grant the father custody, based primarily on the fact that the children had lived alone with the father for two years and that he had taken care of them. [FN118] Although it is unclear from the few facts outlined in the case what behavior constituted the "violent arguments," this behavior should have played a significant role in the court's decision.

Similarly, the court in the more recent unreported case of Sklar v. Sklar [FN119] ignored the fact that the wife claimed to have been *1363 physically abused by her husband. In defending her reasons for taking the children from her homein New York to her parents home in Indiana, the defendant wife stated that "(1) the parties were always fighting, (2) the defendant threatened her, pushed her and called her names on numerous occasions and (3) the defendant choked her in November 1988." [FN120] The court did grant custody to the defendant wife, but forced her to move back to New York so her husband could exercise his visitation rights. [FN121] The court stated "if defendant was so concerned about her safety, as she alleges, she could have moved from the marital apartment to another apartment in New York City." [FN122] There was no discussion whatsoever of the plaintiff's alleged abuse of the defendant wife. This court obviously was ignorant of domestic violence and its effects, not only upon the children, but upon the victim as well. [FN123]

Again, these cases illustrate the lack of training judges receive regarding domestic violence and its effects on both the direct and indirect victims. Education is sorely needed in this area for lawyers as well. They are generally unaware of the effects of spousal abuse on both the mother and the child and thus may fail to introduce evidence of domestic violence at custody proceedings. [FN124] Some attorneys may even go so far as to advise a client to accept a settlement which includes protection for the victim, but also her guarantee that she will not introduce evidence of domestic violence at a custody determination. [FN125]

One of the few times a best interests standard will give weight to evidence of domestic violence is when the abuser actually murders his victim. [FN126] Unfortunately, it takes these types of extreme cases to gain the attention of the courts. However, even evidence of a father killing his wife has actually been found to have no direct *1364 impact upon the child. [FN127] Courts have sometimes granted even these fathers custody. [FN128]

In one case in New York, a Supreme Court Justice granted custody to a man who was accused of strangling his wife to death. [FN129] Based on the testimony of two psychiatrists who claimed the murder was specific to his wife, the Justice found that there was no threat of harm to the children, and thus no extraordinary circumstances. [FN130] The psychiatrists' testimony is obviously contrary to the many studies addressing the effects of domestic violence on children. [FN131] Eventually the father was convicted of strangling his wife, [FN132] however the custody issue was not addressed further because he died in prison while awaiting sentencing. [FN133]

Some New York courts have gone in the opposite direction. In In Re Antoinette, [FN134] the maternal grandparents sought custody of their grandchild when the father was a suspect in the mother's murder. The court granted custody of the child to her grandparents, but only "[a]fter much soul searching and a painstaking analysis of all the evidence." [FN135] In reaching the correct decision, it should not have been so "painstaking" for the court to reach a finding of "extra-ordinary circumstances." The court heard evidence of a "long history of explosive and uncontrollable domestic violence, along with [a] personality disorder and 'short fuse' temperament, characterized by [a] short frustration tolerance and poor impulse control." [FN136] An appellate court later upheld this decision. [FN137]

The new amendment to Domestic Relations Law section 240 may help judges realize that a spousal abuser should not be granted custody. The cases cited above provide examples where courts did in fact consider domestic violence, but nonetheless failed to give it the weight it deserves in determining the best interests of the child.

*1365 V. Evidence of Domestic Violence Must Be a Rebuttable Presumption
Against Custody in New York

Custody statutes with no explicit factors, and even those listing factors a court must consider, do not do enough to protect the best interests of the child. A statutory presumption against awarding an abuser custody would force a judge, who may be uneducated or biased concerning domestic violence, to accord spousal abuse the significant and determinative weight it deserves.

A. Presumption Against Custody Has Been Recommended

A number of influential bodies have advised that evidence of spousal abuse should create a presumption against awarding an abuser custody. [FN138] This recommendation should be followed by New York.

In 1990, Congress passed a concurrent resolution championing the creation of such a presumption. [FN139] Concurrent Resolution 172 stated "for purposes of determining child custody, credible evidence of physical abuse of one's spouse should create a statutory presumption that it is detrimental to the child to be placed [i]n the custody of the abusive spouse." [FN140]

In support of this presumption, the resolution lists many of the factors addressed previously in this Comment, such as the psychological effects of domestic violence upon the child, [FN141] the problems associated with awarding joint custody, [FN142] and the state courts' lack of understanding concerning spousal abuse and its effects on children. [FN143] In a discussion of the resolution, House Representatives mentioned the alarming statistics on domestic violence as well *1366 as stories about some victims of spousal abuse who were let down by the judicial system. [FN144]

The establishment of a presumption against awarding custody to an abuser was also recommended by another significant group, the National Council of Juvenile and Family Court Judges. The Council introduced a model state code on family violence which states in pertinent part,
In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic . . . violence has occurred raises a rebuttable presumption that it is . . . not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence. [FN145]

A report to the President of the American Bar Association also favored the development of a presumption. [FN146] This report stated that "[a]nyone who has committed severe or repetitive abuse to an intimate partner is presumptively not a fit sole or joint custodian for children." [FN147] A recommendation was made that state codes should be amended to include "presumptions that custody not be awarded, in whole or in part, to a parent with a history of inflicting domestic violence." [FN148]

In fact, the Memorandum in Support of the bill amending Domestic Relations Law section 240 cited to the Concurrent Resolution as well as to other institutions which recommended the creation of a presumption against granting a spousal abuser child custody. [FN149] Instead, the Legislature chose to establish domestic violence as a factor. No explanation for this decision can be found in the Memorandum. [FN150]

*1367 B. Analysis of Other States with a Presumption

Eleven states have enacted statutes creating a presumption against granting custody of a child to a spousal abuser. [FN151] These statutes vary in many respects. Four of the states established presumptions, [FN152] the other seven created rebuttable presumptions. [FN153] The state statutes utilize different burdens of proof for establishing domestic violence [FN154] as well as for rebutting the presumption. [FN155] Another difference among states with a rebuttable presumption is the type of evidence required to rebut the presumption. [FN156]

*1368 Of the eleven states containing presumptions, Louisiana has developed the most concise and specific statute that best serves to protect the child. The statute contains a presumption denying both sole and joint custody to an individual with a history of domestic violence. [FN157] In order to rebut the presumption, the parent must show by a preponderance of the evidence that he has "successfully completed a treatment program . . . [and] is not abusing alcohol and . . . drugs" and that it is in the best interests of the child to give the abusive parent custody. [FN158]

The Louisiana Code also provides that if both parents have a record of domestic violence, sole custody should go to the parent least likely to be abusive. [FN159] This parent must also complete a treatment program. [FN160] The statute also states that if a parent is a spousal abuser, that parent must only be allowed supervised visitation and must complete a treatment program. [FN161] However, the parent may have unsupervised visitation if he can show by a preponderance of the evidence that he has completed the program, is not abusing drugs or alcohol, is not a danger to the child, and that visitation is in the best interests of the child. [FN162]

Of all the statutes, the rebuttable presumption created by Louisiana best addresses the effects domestic violence has on children. The child is automatically kept from the sole or joint custody of an abusive parent, unless the parent can rebut the presumption by showing he has satisfied a statutory condition. [FN163] The code also protects the child during visitation, which is important because studies have shown that the violence may increase after divorce. [FN164]

*1369 Florida's presumption statute directs that if a parent was convicted of a second degree felony or higher, that parent should not share custody of the child. [FN165] The presumption does not cover serious violence or abuse that is not designated a second degree felony. Therefore, this statute does not afford enough protection to the child and should not be followed by New York. In Florida, "second degree felonies include attempted murder, manslaughter, aggravated battery, sexual battery, lewd and lascivious or indecent assault on a minor and aggravated child abuse." [FN166]

The language of the statute fails to account for the many battered women who never disclose their abuse to anyone, or who seek to keep their husbands away from themselves and their children, but do not necessarily wish to see them convicted and jailed. [FN167] If there is no conviction, the statute treats evidence of domestic violence as a mere factor. [FN168] The statute also does not consider batterers who may have pled down to a lesser charge from a second degree felony or higher.

The other nine statutes fall in between the extremes set out in Louisiana and Florida. North Dakota's presumption against awarding an abuser sole or joint custody is rebutted solely by clear and convincing evidence that it is in the best interests of the child to have the abusive parent participate in custody. [FN169] While the strong evidentiary standard is appropriate, the court is still left to use its own discretion to decide what evidence qualifies to rebut the presumption.

*1370 In one North Dakota case, the trial court heard evidence regarding a husband who had abused his wife during their marriage. [FN170] The court nevertheless granted custody to the father, stating that the presumption was rebutted by evidence that the husband had not been violent towards the children and could give them a "'more stable home environment."' [FN171] The appellate court upheld this decision. This type of holding best illustrates why rebuttable presumption factors should be explicitly laid out in the statute.

The dissenting opinion stated that the majority holding placed domestic violence in the context of a mere factor and had trivialized the statutory presumption. [FN172] However, the dissent then opined that "the fact that [the husband] directed his physical abuse exclusively at his wife is irrelevant." [FN173] It is this very attitude that the North Dakota code should have addressed. [FN174]

The presumption against joint custody created by the Wisconsin statute is rebuttable by "clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate in the future decision making required." [FN175] Although the high standard of clear and convincing evidence is adequate, the statutory language describing how the presumption may be rebutted solely addresses the parents and makes no mention of the child. [FN176] Since domestic violence tends to increase after divorce, [FN177] and because many spousal abusers also abuse their children, [FN178] this statute is insufficient.

In Colorado, a presumption against awarding an abuser joint custody is proven by credible evidence. [FN179] However, if the court finds that the parties can share responsibility for their child without confrontation, joint custody will be awarded. [FN180] There are no explicit factors laid out to evaluate this evidentiary standard to help *1371 the court make this determination. [FN181] The court is instead left to its own discretion. This can be dangerous for the victim and her children if the court is unaware of or unsympathetic to the fact that domestic violence may escalate after divorce.

Delaware created a presumption that can be rebutted using the same factors as Louisiana. [FN182] However, the Delaware Code fails to provide any evidentiary standards at all. [FN183] The court is left to its own discretion in deciding whether the rebuttable presumption applies, and if so, what standard should be used in order to rebut the presumption. This is too much discretion to allow the court.

Minnesota and Oklahoma have each formulated a rebuttable presumption against awarding an abuser joint custody. [FN184] However, those states' statutes fail to list the factors the legislators intended would rebut the presumption. [FN185] These codes leave the court too much discretion to decide when the presumption has been rebutted.

Texas and Washington have each created presumptions which deny an abusive parent custody. The Texas code denies the parents joint custody if credible evidence demonstrates that one of the parents is an abuser. [FN186] Washington does not mandate that a certain evidentiary standard be used to prove domestic violence. Instead the statute states that a parent's "residential time with the child shall be limited" if the parent is an abuser. [FN187] If limiting the residential time is not enough to protect the child, the statute then prohibits the abusive parent from coming into contact with the child. [FN188] Washington's code also provides that the court may limit or preclude an abusive parent from obtaining custody if there is evidence of spousal abuse. [FN189]

The Wyoming statute finds evidence of domestic violence to be "contrary to the best interest of the child." [FN190] There is no explicit *1372 standard given in the statute to prove domestic violence has occurred. [FN191]

Iowa and Nevada have recently enacted laws which create rebuttable presumptions against awarding an abuser custody. Iowa's statute does not state an evidentiary standard, but it does list certain factors that will determine if a history of domestic violence exists, such as the previous issuance of a protective order. [FN192] The statute also fails to define what evidence will rebut the presumption.

Nevada's law creates a rebuttable presumption that neither sole nor joint custody be granted to a spousal abuser. [FN193] This statute creates a clear and convincing evidentiary standard for proving the violence. [FN194] There is however, no guidance given to the court to determine what evidence will rebut the presumption.

In Massachusetts, a bill submitted to the legislature favors a rebuttable presumption against awarding an abuser joint or sole custody. [FN195] An evidentiary standard of a preponderance of the evidence is needed to create this presumption. [FN196] In order to rebut the presumption, the abuser must show by a preponderance of the evidence that it is in the best interests of the child to give the abusive parent custody. [FN197]

C. Arguments Against Establishing a Presumption

One popular argument against creating a presumption is the fear that the number of unfounded allegations of spousal abuse in custodyproceedings will increase. [FN198] Proponents of this contention believe that this presumption will then serve to open "a flood gate for false allegations and attempts to remove a person from the household or a part of an overall strategy . . . to eventually prevent the relationship of one parent with the child." [FN199]

*1373 It is reasonable to assume that some vindictive spouses may abuse this presumption, or that an over-zealous attorney may even urge a client to do so in order to gain an advantage over the other spouse. The use of a child as the pawn of a parent in order to gain an upper hand in the divorce is not, of course, in the best interests of the child. However, the protection a presumption affords the child far outweighs this argument. It is also for this reason that this Comment advocates the use of an explicit evidentiary standard to prove the existence of domestic violence.

The constitutionality of a presumption against awarding an abusive spouse custody has also been questioned. Some have argued that the presumption would infringe on a parent's due process rights. [FN200] A presumption is never irreversible, even if the word 'rebuttable' does not appear beside it. The constitutionality of rebuttable presumptions has been upheld where "there is a rational connection between the facts needed to be proven and the fact presumed, and there is a fair opportunity for the opposing party to make his defense." [FN201] A rebuttable presumption against awarding a spousal abuser custody is rationally related to protecting the best interests of a child. [FN202] The abusive parent also has the chance to make a defense. If a parent who has been abusive can meet the evidentiary burden to prove he is a fit and able father, despite a history of abuse, the court will act accordingly. [FN203]

Another argument against the use of a presumption is that a custody determination is best left to the discretion of the judges. [FN204] For the many reasons outlined in this Comment which refute this argument, including a lack of education about the effects of domestic violence and the possible existence of personal biases which remain despite education, it must be dismissed.

Lastly, the Family Violence Project of the National Council of Juvenile and Family Court Judges recently suggested that statutory presumptions against awarding an abuser custody may not be more successful in protecting the best interests of a child than codes which list domestic violence as a factor the court must consider. [FN205] The Family Violence Project even suggested that a presumption may hurt parents who used violence to defend themselves or their children. [FN206]

Unambiguous statutory language would prevent a parent who used violence solely as a means of defense from becoming an abuser under the presumption. Wording such as "a history of acts," [FN207] "a history or pattern," [FN208] or "the occurrence of ongoing domestic abuse" [FN209] would prevent the victim from becoming the batterer within the code. The state should also create a specific statutory definition of domestic violence to further protect the battered victim.

D. Suggested Elements of a Rebuttable Presumption Statute for New York

A rebuttable presumption against awarding an abuser custody would best protect the interests of children in New York. In order for the presumption to afford the most protection, it should be carefully constructed. The Legislature would do well to learn from the mistakes of states which have already implemented such a presumption.

There must also be mandatory education of judges and lawyers in the area of domestic violence. Judges who are left to their own discretion may let their personal biases or lack of education come between themselves and a fair verdict. Lawyers must also be taught to introduce evidence of domestic violence in custody proceedings.

*1375 It is conceded that education and the existence of a rebuttable presumption cannot hope to solve all the problems courts may have in making custody determinations. However, it is a start.

Conclusion

Domestic Relations Law section 240 should be amended immediately to provide for a rebuttable presumption against awarding a spousal abuser child custody. A myriad of studies have concluded that domestic violence not only affects the direct victim, but it also negatively affects the children who witness the abuse, as well as those who may not witness it. In addition, spousal abusers have a high tendency to also abuse their children. A rebuttable presumption against awarding an abuser custody would allow the abusive spouse to share in the parenting of his child, once the situation has been made safe for the child.

The best interests of the child demand that New York law be changed at once. The passage of a statutory rebuttable presumption against awarding an abuser custody would best serve to protect New York's children from their abusive parents.

[FNa]. I would like to thank Professor G. Kristian Miccio for introducing me to this subject, my parents for their unending guidance and encouragement, Jill for her invaluable assistance, and Jason whose love and support I can always depend on.

[FN1]. In discussing violence within the family, this Comment uses the gender-neutral terms domestic violence and spousal abuse. The Comment uses feminine pronouns, however, to describe the victims of family violence. This decision is based on the fact that approximately 91% of domestic violence victims are women. See Howard Davidson, The Impact of Domestic Violence on Children 1 (1994) [hereinafter Impact]. National Crime Survey data show that women are victims of domestic violence at a rate three times that of men. See Ronet Bachman & Linda E. Saltzman, Office of Justice Programs, U.S. Dep't of Justice, Family Violence, Bureau of Justice Statistics Special Report 1 (1984). The Comment presumes that any suggestions of how to best incorporate domestic violence into a custody determination applies equally to men and women.

[FN2]. See Doris S. Hoffman, Legal Services Corporation Deserves Support of Bar, N.Y. L.J., May 1, 1995, at S6; see also Family Protection and Domestic Violence Intervention Act of 1994, ch. 222, 1994 N.Y. Laws 2704, 2705 ("More women are hurt from being beaten than are injured in auto accidents, muggings and rapes combined.").

[FN3]. See Constance A. Morella, Keep Wife-Beaters Away From the Kids; Why Do Courts Give Them Custody?, Wash. Post, Dec. 9, 1990, at K5 (estimating that three to four million American women are abused by their husbands or partners each year).

[FN4]. See infra Part II (describing the effects of witnessing spousal abuse on children).

[FN5]. See Martin Fox, Judge McDonald Wraps Up 2d Career, N.Y. L.J., Aug. 18, 1995, at 1 (noting that custody disputes have almost doubled to 23,800 since 1989 in the Manhattan Family Court); Anthony J. Sciolino, Family Court Judge Needed in Rochester, N.Y. L.J., May 18, 1993, at 2 (stating that custody disputes jumped from 211 cases in 1983 to 1940 cases in 1992 in Monroe County Family Court).

[FN6]. See Child Custody and Visitation Proceedings--Domestic Violence as a Factor, Act of May 21, 1996, ch. 85, 1996 N.Y. Sess. Law News 120 (McKinney 1996) (opting against the imposition of a presumption and instead establishing domestic violence as a consideration in custody hearings).

[FN7]. See infra notes 12-37 and accompanying text (citing examples of different states' domestic violence statutes and discussing the history and effects of domestic violence).

[FN8]. See infra notes 38-52 and accompanying text (discussing studies regarding the effects of domestic violence on children).

[FN9]. See infra notes 53-63 and accompanying text (indicating that the current trend is to address the problem of domestic violence).

[FN10]. See infra notes 64-137 and accompanying text (reviewing Domestic Relations Law section 240 and giving examples of its application).

[FN11]. See infra notes 138-209 and accompanying text (referring to statutes, legislative history, and cases that consider domestic violence in child custody matters in different states).

[FN12]. See Barbara J. Hart, Family Violence and Custody Codes, 43 Juv. & Fam. Ct. J. 29 (1992) (noting that as of 1989, less than sixteen states required courts to consider evidence of domestic violence).

[FN13]. For a more in-depth look at the history of the treatment of domestic violence, see Evan Stark, Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, 58 Alb. L. Rev. 973, 987-92 (1995).

[FN14]. See Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1043 (1991) (stating that prior to 1970, custody decisions focused on the relationship between the parents); Developments in the Law--Legal Responses to Domestic Violence (pt. 6), 106 Harv. L. Rev. 1498, 1597 (1993) [hereinafter Developments] (maintaining that child custody determinations were historically arranged after considering the morality of parental conduct).

[FN15]. See Cahn, supra note 14, at 1043 (noting that courts "generally grant[ed] custody to the parent who had been the subject of the cruelty and den [ied] custody to the parent who inflicted the abuse"); Developments, supra note 14, at 1597 (stating that spousal abuse was a means for the courts to deny custody to the abuser).

[FN16]. See John Leland, Tightening the Knot, Newsweek, Feb. 19, 1996, at 72, 72 ("[E]ven if one [partner] contest[s] the divorce the other could get it without asserting wrongdoing.").

[FN17]. See Cahn, supra note 14, at 1043 (explaining that the existing relationship between parents has become less important as child custody decisions have begun to focus on the best interests of the child); Developments, supra note 14, at 1597 (stating that courts have de-emphasized the morality of parents in making child custody decisions and are now creating arrangements that are in the best interests of the child).

[FN18]. See Developments, supra note 14, at 1597-98. Evidence of this view can be found in the Uniform Marriage and Divorce Act, written in 1973 which states, "[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child." Unif. Marriage & Divorce Act § 402 (amended 1973), 9A U.L.A. 561 (Supp. 1996).

[FN19]. See The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 Fam. L.Q. 197, 197 (1995) [hereinafter Family Violence] (noting that child custody codes were amended during the same period that fault was removed from divorce codes to encourage fathers to participate in the parenting process); Consider Violence in Joint- Custody Cases, Des Moines Reg., Mar. 24, 1994, at 13 (discussing the importance of reconsidering the effects of domestic violence in child custody cases as there is "a climate increasingly receptive to divorced fathers becoming more involved with their children").

[FN20]. See H.R. Rep. No. 101-737, at 3 (1990) (discussing the continued access a batterer has to his former spouse if there is joint or shared custody).

[FN21]. See Sense of Congress, Evidentiary Presumption in Child Custody Cases: Hearings on H. Con. Res. 172 Before the Subcomm. on Admin. Law and Gov't Relations of the House Comm. on the Judiciary, 101st Cong. 32 (1990) [hereinafter Hearings] (statement of Dr. Evan Stark, codirector, Connecticut Domestic Violence Project) (explaining that 75% of battered women who are separated or divorced are in greater danger when a custody proceeding is pending or has recently been decided).

[FN22]. See Cahn, supra note 14, at 1043-44 ("[S]tate courts and legislatures recently have begun to incorporate domestic violence into custody decisions again."); Family Violence, supra note 19, at 198-99 (noting that there has been a significant increase in legislation concerning domestic violence in state custody statutes).

[FN23]. The three states which do not explicitly mention domestic violence in their custody statutes are New Mexico, South Dakota, and Utah. See N.M. Stat. Ann. § 40-4-9 (Michie 1994); S.D. Codified Laws § 25-4-45 (Michie 1992 & Supp. 1996); Utah Code Ann. § 30-3-10 (1995).

[FN24]. See Family Protection and Domestic Violence Intervention Act of 1994, ch. 222, 1994 N.Y. Laws 2704 (recognizing the serious problems that domestic violence presents to families in New York); Cahn, supra note 14, at 1044 (noting that public awareness of the impact on abused children has resulted in the consideration of domestic violence in custody awards); Family Violence, supra note 19, at 198 (stating that social scientists and legal researchers have documented the negative effects of family violence on children).

[FN25]. See Family Violence, supra note 19, at 199-200 (stating that a majority of states consider domestic violence as a factor in applying the best interests standard).

[FN26]. See, e.g., S.D. Codified Laws § 25-4-45 (Michie 1992 & Supp. 1996) (noting that the court shall be guided by the child's best interests in giving direction for custody and care).

[FN27]. See, e.g., Ind. Code Ann. § 31-1-11.5-21 (Michie 1987) (taking into account such factors as the child's age and sex, the child's wishes, and the mental and physical health of those involved); N.M. Stat. Ann. § 40-4-9 (Michie 1994) (considering the interaction and relationships between the child and those who will affect the child's interests); Tenn. Code Ann. § 36-6- 106 (Supp. 1995) (taking into account the character and behavior of other individuals who spend time at the home of a parent and the importance of keeping the child in a stable environment).

[FN28]. See infra notes 33-37 and accompanying text (discussing the presumption standard).

[FN29]. For examples of factors that evolved through case precedent, see Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983) (listing factors the Mississippi courts must use to evaluate custody decisions), and Eschbach v. Eschbach, 436 N.E.2d 1260, 1262-64 (N.Y. 1982) (stating which factors will be used in a custody determination). For examples of state statutes in which factors are set out explicitly, see supra note 27.

[FN30]. See, e.g., Utah Code Ann. § 30-3-10 (1995) (stating that "the court shall consider the best interests of the child and the past conduct and demonstrated moral standards of each of the parties"); Yontef v. Yontef, 440 A.2d 899, 901 (Conn. 1981) (awarding custody to the father based on factors including the mother's "nocturnal activities, and her 'I'll have it my way' attitude."); see also Cahn, supra note 14, at 1060 (stating that behavior outside of the child's presence is "theoretically irrelevant"); Developments, supra note 14, at 1597 n.1 (stating that judges need to analyze custodial options before making decisions).

[FN31]. See Cahn, supra note 14, at 1059-61 (detailing the different best interests of the child standards).

[FN32]. See Family Violence, supra note 19, at 199 (maintaining that child custody statutes containing provisions concerning domestic violence assist judges in making child custody and visitation determinations); see also supra note 23 and accompanying text (citing three states which do not list domestic violence as a factor to be considered by a court).

[FN33]. See Colo. Rev. Stat. Ann. § 14-10-124(1.5)(m) (West 1987); Del. Code Ann. tit. 13, § 705A (Supp. 1996); Fla. Stat. Ann. § 61.13 (West 1985 & Supp. 1997); La. Rev. Stat. Ann. § 9:364(A) (West Supp. 1997); Minn. Stat. Ann. § 518.17(2)(d) (West Supp. 1997); N.D. Cent. Code § 14- 09-06.2(j) (Supp. 1995); Okla. Stat. Ann. tit. 10, § 21.1 (D) (West Supp. 1996); Tex. Fam. Code Ann. § 14.021(h) (West Supp. 1996); Wash. Rev. Code Ann. § 26.09.191(2) & (3) (West Supp. 1997); Wis. Stat. Ann. § 767.24(2)(b) (West 1993 & Supp. 1996); Wyo. Stat. Ann. § 20-2-113(a) (Michie Supp. 1996).

[FN34]. See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801, 950 (1993) (discussing the critical importance of domestic violence considerations in resolving custody and visitation, and stating that a statutory presumption may prevent an abuser from being awarded custody).

[FN35]. See infra Part V (detailing the statutes of states with presumptions against awarding spousal abusers child custody).

[FN36]. See, e.g., La. Rev. Stat. Ann. § 9:364(A) (West Supp. 1997) (stating that the presumption will be overcome when, by a preponderance of the evidence, it is shown that the abusive parent has successfully completed a treatment program).

[FN37]. See, e.g., Del. Code Ann. tit. 13, § 705A (Supp. 1996) (noting that the presumption against custody may be overcome if a judicial officer finds evidence demonstrating that there is no risk of future violence).

[FN38]. For a more in-depth summary of these studies, see Marjory D. Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State, 3 Cornell J.L. & Pub. Pol'y 221, 222-34 (1994).
It should be noted that these adverse effects are generally worse for a child who has been a direct victim of violence, and most harmful for a child who is both a witness and a direct victim of domestic violence. See, e.g., Liane V. Davis & Bonnie E. Carlson, Observation of Spouse Abuse: What Happens to the Children, 2 J. Interpersonal Violence 278, 283 (1987) (concluding that children who witness violence exhibit serious behavior problems); Kathleen J. Sternberg et al., Effects of Domestic Violence on Children's Behavior Problems and Depression, 29 Dev. Psychol. 44 (1993) (noting that children who are themselves victims of abuse exhibit the most problems but that children who witness spousal abuse also display significant problems).

[FN39]. See Cahn, supra note 14, at 1057-58 (confirming that children who witness abuse suffer negative behavioral and emotional effects).

[FN40]. Davis & Carlson, supra note 38, at 279. In the area of health, the authors noted that these problems can "include headaches, stomach aches, diarrhea, ulcers...asthma, eneuresis [sic], and sleep difficulties." Id. Effects related to school could consist of "erratic attendance, poor performance, distractibility, and school phobias." Id. Problems of "excessive crying and extreme fear, withdrawal or extreme passivity and dependency, aggressiveness and impulsivity, confusion, tantrums, anxiety, depression, and self-mutilation" were also reported. Id.

[FN41]. See Jane L. Mathias et al., The Psychological Functioning of Children From Backgrounds of Domestic Violence, 30 Austl. Psychol. 47, 52-53 (1995) (suggesting that "children exposed to domestic violence are at risk of...developing more emotional and behavioral problems").

[FN42]. H.R. Rep. No. 101-737, at 3 (1990).

[FN43]. See Davis & Carlson, supra note 38, at 279 (noting that "[s]chool- aged children tend to respond in sex-stereotypic ways").

[FN44]. See Elaine Hilberman & Kit Munson, Sixty Battered Women, 2 Victimology 460, 463 (1978) (noting that female children who were onlookers to domestic violence "were likely to become withdrawn, passive, clinging, and anxious"). But see Davis & Carlson, supra note 38, at 288 (hypothesizing that in other age groups girls who have been exposed to domestic violence may become more aggressive than boys).

[FN45]. See Davis & Carlson, supra note 38, at 279 (stating that younger children "are most likely to respond with somatic complaints and to regress to earlier levels of functioning"); Robert S. Pynoos & Kathi Nader, Children's Exposure to Violence and Traumatic Death, 20 Psychiatric Annals 334, 343 (1990) (noting that the age of a child is an important factor for determining the child's ability to assimilate in various situations).

[FN46]. See Davis & Carlson, supra note 38, at 278 (noting that "growing up in a family in which there is spousal violence increases the likelihood of becoming a battering husband, and, perhaps, the likelihood of becoming an abused wife").

[FN47]. See id. at 279 (noting that adolescent boys "commonly react with aggressive behaviors").

[FN48]. See Alan Rosenbaum & K. Daniel O'Leary, Children: The Unintended Victims of Marital Violence, 51 Am. J. Orthopsychiatry 692, 697 (1981).

[FN49]. See id.

[FN50]. See id.

[FN51]. See Davis & Carlson, supra note 38, at 288-89 (suggesting that girls have a "strongly developed identification with their victim-mother"); see also Hilberman & Munson, supra note 44, at 463 (stating that female children are "likely to become withdrawn, passive, clinging, and anxious" after witnessing spousal abuse).

[FN52]. See Lenore E. Walker, The Battered Woman Syndrome 59, 63 (1984) (finding that 53% of men studied who abuse their wives also abuse their children and suggesting that the child abuse is more likely to occur as the children grow older); Lee H. Bowker et al., On the Relationship Between Wife Beating and Child Abuse, in Feminist Perspectives on Wife Abuse 158, 162 (Kersti Yllo & Michele Bograd eds., 1988) (finding that 70% of the men studied who abused their wives also abused their children); Mary McKernan McKay, The Link between Domestic Violence and Child Abuse: Assessment and Treatment Considerations, 73 Child Welfare 29 (1994) (indicating "child abuse is 15 times more likely to occur in families where domestic violence is present"); Rosenbaum & O'Leary, supra note 48, at 698-99 (concluding that "[i]f spouse abuse is occurring within a family, assessment for child abuse is clearly indicated"); Evan Stark & Anne H. Flitcraft, Women and Children at Risk: A Feminist Perspective on Child Abuse, 18 Int'l J. Health Servs. 97, 106 (1988) (noting that half of the men studied abused both their wives and children).

[FN53]. The work of the feminist movement beginning in the late 1960s surely had an impact on the increased awareness of domestic violence. The rise of women in the workplace has given women today a better chance of having their needs publicized and met. Another explanation for the recent growth in awareness is that domestic violence appears to be a 'politically correct' topic in our society today. See, e.g., Darryl Campagna, The Push for Reform Changing Laws Reflect Changing Attitudes About Domestic Violence; State Lawmakers are Working to Close Gaps in the Legal System, Times Union (Albany, N.Y.), May 9, 1996, at A1 (stating that "[t]he passage of the child custody bill this week illustrates what many legislators are saying: domestic violence is a hot topic this year").

[FN54]. See H.R. Con. Res. 172, 101st Cong. (1990) (listing factors that prompted Congress to endorse the statutory presumptions).

[FN55]. Id. For further discussion of this resolution, see infra notes 138- 44 and accompanying text (noting the factors supporting the statutory presumption that it is detrimental for a child to be placed with a custodial spouse who is physically abusive).

[FN56]. See infra note 145 and accompanying text (maintaining that the premise of criminal statutes, to ensure punishment for domestic violence perpetrators, should extend to child custody proceedings).

[FN57]. See Family Protection and Domestic Violence Intervention Act of 1994, ch. 222, 1994 N.Y. Laws 2704.

[FN58]. Id. at 2705. This Act allows battered women to simultaneously turn to Criminal Court and the Family Court for help and protection, or to choose one court over the other. See id. at 2706-07. The Act also increases the penalties faced by abusers, allows for the mandatory arrest of abusers in certain cases, requires that more extensive notice be given to victims of abuse, establishes a computerized tracking system for arrest warrants and orders of protection, revises orders of protection, and provides for training in the area of domestic violence to the courts and other law enforcement personnel. See id. at 2706-11.

[FN59]. See infra notes 69-71 and accompanying text (noting the factors that contributed to this legislation).

[FN60]. See '94 Ends on a Downbeat for Some in the Law, N.Y. L.J., Jan. 3, 1995, at 1.

[FN61]. For example, symposia on domestic violence were held at Albany Law School in 1994 and at Hofstra Law School in 1993. See Symposium on Reconceptualizing Violence Against Women By Intimate Partners: Critical Issues, 58 Alb. L. Rev. 1 (1995); Symposium on Domestic Violence, 21 Hofstra L. Rev. 1 (1993).

[FN62]. See Training Session Set on Domestic Violence, N.Y. L.J., Apr. 15, 1993, at 2 (stating that such programs address issues of child custody).

[FN63]. See generally Hilary Johnson & Francine G. Hermelin, The Truth About White-Collar Domestic-Violence; Battered Middle-and-Upper-Class Women, Working Woman, Mar. 1995, at 54.

[FN64]. N.Y. Dom. Rel. Law § 240 (McKinney 1986 & Supp. 1997).

[FN65]. Id. § 240(1) (McKinney 1986).

[FN66]. Id. (McKinney Supp. 1997).

[FN67]. See Campagna, supra note 53, at A1 (noting that at the time the prior version was introduced it was considered extreme because "domestic violence was still largely considered a private family matter").

[FN68]. See infra notes 106-07 and accompanying text (pointing out that courts still have a lot of discretion in determining child custody).

[FN69]. Memorandum in Support, A. 2446, 219th Leg., Reg. Sess. (N.Y. 1996), reprinted in 1996 N.Y. Laws A-79 (determining that domestic violence shall be a primary factor in determining child custody).

[FN70]. See id.

[FN71]. See id.

[FN72]. See N.Y. Dom. Rel. Law § 240(1) (McKinney Supp. 1997).

[FN73]. See id.

[FN74]. See Bennett v. Jeffreys, 356 N.E.2d 277, 280 (N.Y. 1976) (allowing an inquiry into the best interests of the child once such circumstances are found).

[FN75]. See id. The court in Bennet found extraordinary circumstances where a mother was separated from her child for a prolonged period of time, had no home of her own, was unmarried, and where the child was more attached to the custodian to whom her care had been entrusted. See id. at 284. Although in the lower court custody had been awarded to the nonparent custodian, the case was remanded to determine the best interests of the child because the lower courts had failed to evaluate the qualifications and background of both the nonparent custodian and the mother. See id. at 284-85.

[FN76]. See id. at 280.

[FN77]. See id. (requiring examination into the best interests of the child because of extraordinary circumstances); see also Antionette M. v. Paul Seth G., 608 N.Y.S.2d 703, 704 (2d Dep't 1994) (finding that "the father's history of domestic violence and spousal abuse constituted extraordinary circumstances" which then led to a best interests determination in favor of the grandparents); Nellie R. v. Betty S., 589 N.Y.S.2d 1000, 1001 (2d Dep't 1992) (considering the best interests of the child after finding that the mother's history of mental illness was an extraordinary circumstance).

[FN78]. Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226, 229 (Summer 1975).

[FN79]. See Cahn, supra note 14, at 1042 & n.3 ("The question of which factors are most relevant to the child's best interest is unsettled.").

[FN80]. See infra notes 81-97 and accompanying text.

[FN81]. Farkas v. Farkas, N.Y. L.J., July 13, 1992, at 31 (N.Y. Sup. Ct.) [hereinafter Farkas] (noting that case law provides significant guidance into what constitutes the best interests of a child). Farkas is an unreported case.

[FN82]. See Linda R. Keenan, Note, Domestic Violence and Custody Litigation: The Need for Statutory Reform, 13 Hofstra L. Rev. 407, 427 (1985) (noting that the courts may, in the exercise of their discretion, fail to recognize the effects of domestic violence on children).

[FN83]. See N.Y. Dom. Rel. Law § 240 (McKinney 1986).

[FN84]. Factors considered by the courts include: "maintaining stability in the living situation, the relative fitness of the parents, the children's wishes, the quality of the home environment, the parental guidance provided by the custodial parent to the children and the ability of each parent to provide for the intellectual and emotional needs and development of the children." Ostrander v. Ostrander, 541 N.Y.S.2d 630, 632 (3d Dep't 1989). For a discussion of other factors that may be considered, see also Eschbach v. Eschbach, 436 N.E.2d 1260, 1263 (N.Y. 1982), Garvin v. Garvin, 574 N.Y.S.2d 760, 761 (2d Dep't 1991), and Keating v. Keating, 538 N.Y.S.2d 286, 287 (2d Dep't 1989).

[FN85]. See Garvin, 574 N.Y.S.2d at 761 (noting that there are "factors of varying degrees of importance," but failing to identify any specific factor as more important); Sklar v. Sklar, N.Y. L.J., Dec. 13, 1992, at 27 (N.Y. Sup. Ct.) (stating that "there are no absolutes in the law governing custody"). Sklar is an unreported case.

[FN86]. See Keating, 538 N.Y.S.2d at 288; Farkas, supra note 81, at 31.

[FN87]. See Cahn, supra note 14, at 1059. Feminists sought gender-neutral terms to avoid discrimination, while groups representing fathers sought paternal equality. See id.

[FN88]. See Susan Chira, Solomon's Rules for the 90's, N.Y. Times, Sept. 25, 1994, at E1. Ms. Chira's article mentions a Michigan case where a mother placed her child in day-care so she could attend college. The mother lost custody to the father, who said his parents would help care for the child. See id. The mother was thus penalized for seeking a career, something for which the court would undoubtedly not penalize a man. See id.

[FN89]. See Cahn, supra note 14, at 1059 n.102 (stating that "nonnurturing factors" such as financial resources generally favor fathers); Developments, supra note 14, at 1599 (noting the importance of financial resources in determining the best interests of the child); see also Keenan, supra note 82, at 412 (describing the economic disadvantages that women face in custody proceedings).

[FN90]. See Cahn, supra note 14, at 1059 n.102.

[FN91]. See Hearings, supra note 21, at 5 (explaining that "[d]omestic violence...is a means of establishing control over another person through fear and intimidation").

[FN92]. See Keenan, supra note 82, at 413. The abuse victim is generally economically dependent upon the abuser. Often a victim who may not be able to afford legal fees will be threatened with custody litigation by the abuser if she leaves. See id. at 422-23.

[FN93]. 437 N.Y.S.2d 411 (2d Dep't 1981).

[FN94]. See id. at 412-13.

[FN95]. See A.F. v. N.F., 549 N.Y.S.2d 511, 514 (2d Dep't 1989) (reversing the lower court's decision where the lower court did not make any findings regarding allegations of sexual abuse of the child); Gloria S., 437 N.Y.S.2d at 414-15 (reversing the lower court's decision where the lower court had granted custody to the father based on testimony of psychiatrists who had never interviewed the child or the mother).

[FN96]. See A.F., 549 N.Y.S.2d at 514 ("While the evidence that the father has acted violently towards the mother does not automatically warrant denial of custody, this type of behavior, especially where it occurs in the presence of the child, does relate to the parties' respective abilities to assume the role of primary custodian."); see also Fields, supra note 38, at 242 (noting the increase in the number of New York decisions holding that violence by one parent against the other is a factor to be considered in child custody cases).

[FN97]. See Fields, supra note 38, at 245 ("Appellate Division judges have recently rebuked trial courts for failing to give proper consideration to evidence of abuse.").

[FN98]. See Lynn Hecht Schafran, There's No Accounting for Judges, 58 Alb. L. Rev. 1063, 1065 (1995) (setting forth examples of judges who do not give proper credence to domestic violence and its victims).

[FN99]. See Martha Albertson Fineman, Preface to The Public Nature of Private Violence at xiii (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994); see also Intimate Violence: Interdisciplinary Perspectives at xvii (Emilio C. Viano ed., 1992) [hereinafter Intimate Violence] (stating that family violence is perceived as a private matter in which the police and public should not intervene); Honorable Karen Burstein, Naming the Violence: Destroying The Myth, 58 Alb. L. Rev. 961, 964 (1995) (noting that the idea of family as a purely private unit must be overcome).

[FN100]. See Intimate Violence, supra note 99; David Westfall, Family Law 100 (1994) (noting a reluctance to interfere with family affairs).

[FN101]. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989). In Deshaney, a father was convicted of beating his son into a coma after many reported instances of child abuse. The Court held that the State was not responsible for the child's coma because "had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship." Id. at 203. But see Raucci v. Town of Rotterdam, 902 F.2d 1050 (2d Cir. 1990). In Raucci, a mother was injured and her son killed when her abusive husband shot at them. See id. at 1053. The court held the Town of Rotterdam liable because a "special relationship" had been formed between the town's police and the mother. See id. at 1055. She had obtained an order of protection, and had come to the police many times with injuries and other material evidence of his abusive nature. See id. at 1052-53.

[FN102]. See Stark, supra note 13, at 974-75 (explaining the battered woman's syndrome); see also Hearings, supra note 21, at 13 (statement of Judge Rosalyn B. Bell, associate judge, Maryland Court of Special Appeals) (noting that "battered [woman's] syndrome parallels the hostage syndrome").

[FN103]. See Howard A. Davidson, Child Abuse and Domestic Violence: Legal Connections and Controversies, 29 Fam. L. Q. 357, 363 (1995) (noting the common belief that abuse victims act irresponsibly by not leaving an abusive situation).

[FN104]. See id.

[FN105]. See Intimate Violence, supra note 99, at xviii.

[FN106]. A recent murder-suicide in New York illustrates judges' lack of understanding of domestic violence. A man with a history of violence was arrested for violating a protective order obtained by his former girlfriend. See Anthony M. DeStefano & Karen Freifeld, Fatal Error May Not Kill Judge's Career, Newsday (N.Y.), Feb. 16, 1996, at A8. The judge let the man out on bail because he believed the man would calm down once reunited with his dog, about which he was concerned. See id. The former boyfriend then went to the woman's place of work, shot her and then turned the gun on himself, killing them both. See id.

[FN107]. See N.Y. Dom. Rel. Law § 240(1) (McKinney Supp. 1997).

[FN108]. See Mary E. Becker, Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability For Acts of Others, 2 U. Chi. L. Sch. Roundtable 13, 23-24 (1995) (noting that many family judges consider spousal abuse irrelevant in child custody cases); Cahn, supra note 14, at 1060 (stating that parental behavior unknown to the child is irrelevant in deciding the best interests of the child); Developments, supra note 14, at 1600 (same).

[FN109]. See Fields, supra note 38, at 225-34 (discussing the effects of domestic violence on children); Keenan, supra note 82, at 409 (noting the necessity of giving evidence of spousal abuse greater weight in child custody proceedings).

[FN110]. See Impact, supra note 1, at 13 (quoting a battered woman who stated, "'[T]he judge gave my husband custody of the kids, declaring that his violence toward me had nothing to do with his ability to be a good father.' 'Its between the adults involved."'); Caren Benjamin, Bill Would Limit Child Custody Rights of Spouse Batterers, Las Vegas Rev.-J., Apr. 25, 1995, at 7B (discussing rumors that certain judges stated "'I don't care what the adults do to each other as long as no harm comes to the children."').

[FN111]. 467 N.Y.S.2d 223 (2d Dep't 1983).

[FN112]. Id. at 224.

[FN113]. See id.

[FN114]. See N.Y. Dom. Rel. Law § 240(1) (McKinney Supp. 1997).

[FN115]. 541 N.Y.S.2d 630 (3d Dep't 1989).

[FN116]. Id. at 631.

[FN117]. See id. at 632.

[FN118]. See id.

[FN119]. N.Y. L.J., Dec. 17, 1992, at 27 (N.Y. Sup. Ct.).

[FN120]. Id.

[FN121]. See id.

[FN122]. Id.

[FN123]. See supra notes 102-05 and accompanying text (explaining why a victim of domestic violence often does not consider leaving the abuser to be a viable option).

[FN124]. See supra notes 102-05 and accompanying text (explaining the public's lack of education about domestic violence and its effects).

[FN125]. See Klein & Orloff, supra note 34, at 958-59 (noting that these settlements effectively keep evidence of domestic abuse out of custody proceedings).

[FN126]. See Keenan, supra note 82, at 413 n.48 (discussing cases involving fathers who murdered their wives).

[FN127]. See Cahn, supra note 14, at 1077-81 (giving detailed examples of the justifications used by various courts for awarding custody to an abuser who murders his wife); Developments, supra note 14, at 1605-06 n.55 (detailing how various courts have dealt with evidence of domestic violence in custody proceedings).

[FN128]. See id.

[FN129]. See Laura Herbst, Long Island Follow-Up, N.Y. Times, May 15, 1988, at 12L.

[FN130]. See id.

[FN131]. See supra Part II (discussing studies which have shown that there are likely to be detrimental effects on children who witness child abuse).

[FN132]. See Probate Proceeding Will of Diane J. Pikul, N.Y. L.J., Aug. 9, 1993, at 21.

[FN133]. See id.

[FN134]. N.Y. L.J., Mar. 4, 1993, at 35 (N.Y. Sup. Ct.)

[FN135]. Id.

[FN136]. Id.

[FN137]. See Antionette M. v. Paul Seth G., 608 N.Y.S.2d 703 (2d Dep't 1994).

[FN138]. See infra notes 139-48 (including the United States Congress and the American Bar Association among those organizations advising the adoption of a presumption against awarding an abuser custody).

[FN139]. See H.R. Con. Res. 172, 101st Cong. (1990).

[FN140]. Id.

[FN141]. See supra Part II (discussing studies that found spousal abuse has a serious negative effect on children who witness it).

[FN142]. See supra notes 19-21 and accompanying text (indicating that joint custody is not necessarily a fair option for abused women and their children, as abuse often continues after a divorce).

[FN143]. See supra notes 111-37 and accompanying text (discussing cases in which courts were insensitive to domestic violence in making custody decisions).

[FN144]. See Hearings, supra note 21, at 33 (statement of Dr. Evan Stark, codirector, Connecticut Domestic Violence Project) (indicating that reports conclude that domestic violence escalates after divorce).

[FN145]. Model Code on Domestic and Family Violence § 401 (Nat'l Council of Juvenile and Family Court Judges 1994).

[FN146]. See Impact, supra note 1, at 13.

[FN147]. Id.

[FN148]. Id. at 15.

[FN149]. See Memorandum in Support, A. 2446, 219th Leg., Reg. Sess. (N.Y. 1996), reprinted in 1996 N.Y. Laws A-79.

[FN150]. See id.

[FN151]. See Colo. Rev. Stat. Ann. § 14-10-124(1.5)(m) (West 1987); Del. Code Ann. tit. 13, § 705A (Supp. 1996); Fla. Stat. Ann. § 61.13 (West 1985 & Supp. 1997); La. Rev. Stat. Ann. § 9:364(A) (West Supp. 1997); Minn. Stat. Ann. § 518.17(2)(d) (West Supp. 1997); N.D. Cent. Code § 14- 09-06.2(j) (Supp. 1995); Okla. Stat. Ann. tit. 10, § 21.1 (West Supp. 1997); Tex. Fam. Code Ann. § 14.021(h) (West Supp. 1996); Wash. Rev. Code Ann. § 26.09.191 (2) & (3) (West Supp. 1997); Wis. Stat. Ann. § 767.24(2)(b)(2)(c) (West Supp. 1996); Wyo. Stat. Ann. § 20-2-113(a) (Michie Supp. 1996).

[FN152]. See Colo. Rev. Stat. Ann. § 14-10-124(1.5)(m) (West 1987); Tex. Fam. Code Ann. § 14.021(h) (West Supp. 1996); Wash. Rev. Code Ann. § 26.09.191 (2) & (3) (West Supp. 1997); Wyo. Stat. Ann. § 20-2-113(a) (Michie Supp. 1996).

[FN153]. See Del. Code Ann. tit. 13, § 705A (Supp. 1996); Fla. Stat. Ann. § 61.13(2) (West 1985 & Supp. 1997); La. Rev. Stat. Ann. § 9:364(A) (West Supp. 1997); Minn. Stat. Ann. § 518.17(2)(d) (West Supp. 1997); N.D. Cent. Code § 14-09-06.2(j) (Supp. 1995); Okla. Stat. Ann. tit. 10, § 21.1(D) (West Supp. 1997); Wis. Stat. Ann. § 767.24(2)(b)(2)(c) (West Supp. 1996).

[FN154]. See, e.g., Colo. Rev. Stat. Ann. § 14-10-124(1.5)(m) (West 1987) (credible evidence); Fla. Stat. Ann. § 61.13 (West Supp. 1997) (felony of the second degree or higher); N.D. Cent. Code § 14-09-06.2(j) (Supp. 1995) (credible evidence); Okla. Stat. Ann. tit. 10, § 21.1 (D) (West Supp. 1997) (clear and convincing evidence); Tex. Fam. Code Ann. § 14.021(h) (West Supp. 1996) (credible evidence).

[FN155]. See, e.g., La. Rev. Stat. Ann. § 9:364(A) (West Supp. 1997) (preponderance of the evidence); N.D. Cent. Code § 14-09-06.2(j) (Supp. 1995) (clear and convincing evidence); Wis. Stat. Ann. § 767.24(2)(b)(2)(c) (West Supp. 1996) (clear and convincing evidence).

[FN156]. See, e.g., La. Rev. Stat. Ann. § 9:364(A) (West Supp. 1997) (finding that the presumption may be rebutted when the abusive parent "has successfully completed a treatment program..., is not abusing alcohol and... drugs ..., and that the best interest of the child...requires that parent's participation as a custodial parent because of the other parent's absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child ..."); N.D. Cent. Code § 14-09-06.2(j) (Supp. 1995) ("[E]vidence that the best interests of the child require that parent's participation as a custodial parent."); Wis. Stat. Ann. § 767.24(2)(b)(2)(c) (West Supp. 1996) (finding that the presumption may be rebutted by "evidence that the abuse will not interfere with the parties' ability to cooperate in the future decision making required"). The other state statutes containing rebuttable presumptions do not define what evidence rebuts the presumption. See Fla. Stat. Ann. § 61.13 (West Supp. 1997); Minn. Stat. Ann. § 518.17(2)(d) (West Supp. 1997); Okla. Stat. Ann. tit. 10, § 21.1 (D) (West Supp. 1997).

[FN157]. See La. Rev. Stat. Ann. § 9:364(A) (West Supp. 1997).

[FN158]. Id. Granting an abuser custody is in the best interests of the child under this code if the non-abusive parent is absent, suffering from a mental illness or substance addiction, or anything else the court considers to affect the best interests of the child. See id.

[FN159]. See id. § 9:364(B).

[FN160]. See id.

[FN161]. See id.

[FN162]. See id. § 9:364(C).

[FN163]. See id. § 9:364(A).

[FN164]. The Louisiana Legislature found that:
[T]he problems of family violence do not necessarily cease when the victimized family is legally separated or divorced. In fact, the violence often escalates, and child custody and visitation become the new forum for the continuation of the abuse. Because current laws relative to child custody and visitation are based on an assumption that even divorcing parents are in relatively equal positions of power, and that such parents act in the children's best interest, these laws often work against the protection of the children and the abused spouse in families with a history of family violence. Consequently, laws designed to act in the children's best interests may actually effect a contrary result due to the unique dynamics of family violence.
Bruscato v. Avant, 660 So. 2d 72, 73-74 (La. Ct. App. 1995) (alteration in original) (citation omitted).

[FN165]. See Fla. Stat. Ann. § 61.13 (West Supp. 1997).

[FN166]. Lars Hafner, O.J.'s Case Puts Focus on Spouse Abuse, Largo-Seminole Times (Fla.), July 6, 1994, at 2.

[FN167]. See, e.g., Kopec v. Severance, 658 So. 2d 1060 (Fla. Dist. Ct. App. 1995). In Kopec, the Florida appellate court upheld the decision of the trial court to grant residential custody to the father. See id. at 1060. The presumption was not met because the father did not have the proper convictions. See id. The dissenting judge pointed out that the mother had filed five Petitions for Injunctions for Protections Against Domestic Violence and five injunctions enjoining the father from assaulting, abusing, or sexually abusing the family. See id. at 1061 (Sharp, J., dissenting). The trial court weighed this evidence as a factor, but did not consider it to be serious. See id. at 1061-62 (Dauksch, J., majority). Kopec is also another example of why leaving domestic violence simply as a factor is not enough to protect the child.

[FN168]. See Fla. Stat. Ann. § 61.13(2)(b)(2) (West Supp. 1997).

[FN169]. See N.D. Cent. Code § 14-09-06.2(j) (Supp. 1995)

[FN170]. See Schestler v. Schestler, 486 N.W.2d 509, 510 (N.D. 1992). The court heard evidence that the husband had abused the wife, and that he had inappropriately touched her daughters' breasts. See id. at 512.

[FN171]. See id. at 512.

[FN172]. See id. at 515 (Levine, J., dissenting).

[FN173]. Id.

[FN174]. The majority also found it important that the husband had never been violent towards his wife's children. See id. at 512.

[FN175]. Wis. Stat. Ann. § 767.24(2)(b)(2)(c) (West Supp. 1996).

[FN176]. See id.

[FN177]. See supra note 21 and accompanying text.

[FN178]. See supra note 52 and accompanying text.

[FN179]. See Colo. Rev. Stat. Ann. § 14-10-124(1.5)(m) (West 1989).

[FN180]. See id.

[FN181]. See id.

[FN182]. See Del. Code Ann. tit. 13, § 705A (Supp. 1996).

[FN183]. See id.

[FN184]. See Minn. Stat. Ann. § 518.17(2)(d) (West 1990 & Supp. 1997); Okla. Stat. Ann. tit. 10, § 21.1 (D) (West Supp. 1997).

[FN185]. See Minn. Stat. Ann. § 518.17(2)(d) (West 1990 & Supp. 1997); Okla. Stat. Ann. tit. 10, § 21.1(D) (West Supp. 1997).

[FN186]. See Tex. Fam. Code Ann. § 153.004 (West 1996).

[FN187]. Wash. Rev. Code Ann. § 26.09.191(2)(a) (West Supp. 1997).

[FN188]. See id.

[FN189]. See id. § 26.09.191(3).

[FN190]. Wyo. Stat. Ann. § 20-2-113(a) (Michie Supp. 1996).

[FN191]. See id.

[FN192]. See Iowa Code § 598.41(3)(j) (1996) (listing "the issuance of a protective order..., the holding of a parent in contempt..., the response of a peace officer to the scene of alleged domestic abuse...or a conviction for domestic assault" as factors to determine the existence of domestic violence).

[FN193]. See Nev. Rev. Stat. § 125.480 (1995).

[FN194]. See id.

[FN195]. See H. 3383, 181st Leg., Reg. Sess. (Mass. 1997).

[FN196]. See id.

[FN197]. See id.

[FN198]. See Developments, supra note 14, at 1618-19.

[FN199]. Hearings, supra note 21, at 86 (statement of Carla Goodwin, educational psychologist, North Easton, MA). It is argued that a spouse will use a false allegation as a tactic to "hurt their spouse, gain sole custody, and be awarded child support." Id. at 103 (statement of Donald A. Gordon, professor of psychology, Ohio University).

[FN200]. See id. at 156 (statement of Rachmiel V. Tobesman) ("By denying father's [sic] rights to see and maintain contact with their children, they have been denied their Constitutional right of due process.").

[FN201]. Unification Theological Seminary v. City of Poughkeepsie, 607 N.Y.S.2d 383, 384 (2d Dep't 1994) (finding, under the due process clause of the state constitution, a rational relationship between a rebuttable presumption that four or more unrelated people sharing a single dwelling is not an equivalent of a traditional family and the desire to preserve the character of residential neighborhoods).

[FN202]. See supra Part II (describing the effects of witnessing spousal abuse on children).

[FN203]. This Comment advocates the use of a rebuttable presumption that will give the abuser a chance to prove to the court he is a fit parent. An irrebuttable or conclusive presumption may be found unconstitutional. See, e.g., Hall v. Recchi Am. Inc., 671 So. 2d 197 (Fla. Dist. Ct. App. 1996) (holding that a statutory irrebuttable presumption which denied workman's compensation violated the due process clause of the Constitution).

[FN204]. See Hearings, supra note 21, at 107 (statement of William P. Turner, Domestic Relations Master, Circuit Court for Montgomery County). The Master stated, "[a] judge...charged with the awesome responsibility of rendering a recommendation concerning custody of a child should be given the discretion to examine, determine and weigh all of the evidence without being mandated to give one factor more weight than another." Id. However, it is precisely because a custody determination is such an "awesome responsibility" that judges should receive statutory guidance and not be left to their own discretion.

[FN205]. See Family Violence, supra note 19, at 221-22.

[FN206]. See id. at 221.

[FN207]. Wash. Rev. Code Ann. § 26.09.191(2)(a)(iii) (West Supp. 1997).

[FN208]. Tex. Fam. Code Ann. § 153.004(b) (West 1996).

[FN209]. Okla. Stat. Ann. tit. 10, § 21.1(D) (West Supp. 1997).