I. Introduction

"There's no place like home . . . there's no place like home." DOROTHY [FN1]

Home is a special place in the lives of children. Home is a place where children should feel "safe" and "protected." "Home should provide an emotional as well as a physical haven." [FN2] However, for the 3.3 to 10 million children who witness domestic violence each year in the United States, home is not an emotional and physical haven. [FN3]

For healthy neurological development, a child needs to feel "safe and protected." [FN4] Studies have shown that children from homes where there is domestic violence are more likely to be involved in "substance abuse and gang activities; experience eating disorders; and have nightmares, problems in school and problems with friends." [FN5] Furthermore, of the children who attempt suicide, sixty-five percent had previously witnessed family violence. [FN6]

Only in the last decade has research recognized the problems encountered by the indirect victims of family violence--those children in homes where a parent is physically abused by a partner. [FN7] As the awareness of the harmful effects of spousal abuse on children has grown, many states have reacted by amending their codes in an attempt to better protect children. [FN8]

The California State Legislature recently passed Assembly Bill ("AB") 200. AB 200 amends the California Family Code ("Code") to *405 require that "if custody is granted to a parent who is alleged to have a history of committing child or domestic abuse . . ., the court's order shall specify the court's reasons . . . ." [FN9] The bill also declares that the "health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making orders regarding custody or visitation." [FN10]

Although this bill is a step in the right direction, in that it recognizes the potential danger to children in homes where there is domestic violence, it is not enough. As the bill was originally written and presented to the Assembly, it would have "created a 'rebuttable presumption' against awarding joint or sole custody of a child to a parent who had battered the other parent." [FN11] A rebuttable presumption is a more protective standard inasmuch as it properly places the burden on the perpetrator to prove his fitness for custody.

This Note advocates that a statutorily created "rebuttable presumption" against awarding a spousal abuser custody is necessary in California. Only then will the court's true primary concern be the health, safety, and welfare of the child.

II. The Effects of Domestic Violence on Children"The scenes of childhood are
the memories of future years."
FARMERS ALMANAC, 1850 [FN12]

A. Domestic Violence is Child Abuse

Domestic violence is defined as the "use of physical force, or threat of such force against a current or former partner in an intimate relationship, resulting in fear and emotional and/or physical suffering." [FN13] When the violence occurs between married partners, it is called spousal abuse. [FN14] Generally the victims are women abused by men. [FN15]

*406 Domestic violence has been called nonphysical child abuse. [FN16] The "most insidious form of child abuse" is to watch one's mother be battered. [FN17] The detrimental effects of physical and sexual abuse on children are well known. However, only recently has the effect of domestic violence on the children who witness the abuse been studied. [FN18] Research now tells us that these children suffer similar emotional effects of psychological trauma as do children who are victims of child abuse. [FN19] Studies also show that children are harmed even if the children do not witness the violence [FN20] (for example, when the battered mother is bedridden, hospitalized, or emotionally impaired from the abuse and, therefore, cannot care and provide for her children--the children are harmed). [FN21]

"Children are affected by what goes on around them as well as what is directly done to them." [FN22] In a recent California case, [FN23] a psychologist testified that "children can suffer 'secondary abuse' from exposure to a parent's beating, absorbing the helplessness and dependency often associated with battered women." [FN24] Consequently, it must be recognized that children who are exposed to brutal behavior in their homes are harmed similarly to those children who are physically abused.

B. Children Suffer Emotional Harm

In one study on the effect of children who are exposed to domestic violence, a researcher wrote:

The child trapped in an abusive environment is faced with formidable tasks of adaptation. She must find a way to preserve a sense of *407 trust in people who are untrustworthy, safety in a situation that is unsafe, control in a situation that is terrifyingly unpredictative, power in a situation of helplessness. [FN25]

One result of a child's attempt to adapt are feelings of isolation and helplessness. [FN26] Since batterers maintain the secrecy of their behavior by isolating their children, children are prevented from developing social relationships. [FN27] Also, the batterer's violent outbursts are unpredictable and when the child can find no way to placate the abuser, the child begins to feel helpless to control their own world. [FN28]

The children of domestic violence also tend to have a fatalistic view of the future. [FN29] As a result, children of domestic violence have a higher incidence of suicide, [FN30] increased risks of substance abuse, and juvenile delinquency. [FN31]

Another emotional effect of domestic violence on a child is constant anxiety. [FN32] Since the child never knows when the next beating will occur, she must always be in a state of alertness; [FN33] and, since the home offers no protection or security, the child feels a constant sense of danger. [FN34] Consequently, this constant anxiety often leads to persistent exhaustion and an inability to perform in school. [FN35]

Self-blame and guilt generate additional stress for children of domestic violence. [FN36] Children often feel they are the cause of the domestic violence. [FN37] They may also feel guilt for not being able to stop the abuser or for loving him. [FN38] As a result of the emotional distress brought on by the self-blame and guilt, children of domestic violence may experience "cognitive or language problems, development delay, and stress related physical ailments (such as headaches, ulcers and rashes), and hearing and speech problems." [FN39] Additionally, younger *408 children may also display "behavioral problems such as insecurity through clinging, crying, nervousness, and a constant need to know where their mothers are." [FN40] Physical symptoms such as "colds, sore throats, bedwetting, insomnia, and fitful sleep" are further displayed by children of all ages in the abusive environment. [FN41]

C. Children are at an Increased Risk of Physical Harm

Children in an environment of family violence are at an increased risk of physical injury. [FN42] This injury may come from the batterer, since there is a high rate of child abuse by men who abuse their partners. [FN43] Further, since battering tends to increase during pregnancy, an unborn child is also at risk of injury or even death. [FN44]

Additionally, children may suffer physical injury from merely being present during the violence. [FN45] This could happen if a mother is holding a child during an attack. [FN46] Often, older children may attempt to intervene to protect their mothers during an attack and find themselves to be a victim. [FN47] Likewise, many children are directly injured when they are hit by flying objects during the violence. [FN48] Despite such potential dangers to his children, the abuser continues with total disregard for their safety. [FN49]

D. The Intergenerational Aspect of Family Violence

Domestic violence is a learned behavior. [FN50] "Boys who witness domestic violence are more likely to batter their female partners as adults than boys raised in non-violent homes." [FN51] Furthermore, violent tendencies may be passed from one generation to another. [FN52] Specifically, children receive direct lessons from their battering fathers that violent behavior and abuse of women is acceptable. [FN53] In fact, boys go on to imitate the abuser while girls tend to become "victim-oriented" *409 in their adult lives. [FN54] Thus, this perpetration of violence into the next generation may be the most harmful effect on the children of domestic violence. [FN55]

III. Historical Perspective"The 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. 'It's between the adults involved."'
A FORMER BATTERED WOMAN [FN56]

A. Domestic Violence as a Private Matter

The historical treatment of domestic violence has undermined its importance in custody decisions. [FN57] Historically, the courts viewed domestic violence as a family matter, an issue for the parties involved to work out on their own. [FN58] The courts also upheld a husband's right to administer any punishment to his family, short of death or permanent injury. [FN59] Accordingly, women were viewed as the property and responsibility of the husband. [FN60]

Not until the 1960s and 1970s was the brutality of domestic violence brought to the attention of the nation. [FN61] However, states were hesitant to modify laws because they were afraid to intrude into territory "viewed as the sanctity of a man's home." [FN62] Whereas domestic violence had been legally sanctioned in the past, there are myths that still persist today. [FN63] These myths include the following: "'1) domestic violence is rare; 2) violence does not occur in relationships that appear 'normal'; 3) domestic violence is a private matter that should be resolved without outside intervention; and 4) battered women are responsible for their abuse."' [FN64]

These myths associated with domestic violence must be overcome in order to give domestic violence the appropriate consideration when *410 child custody is at issue. [FN65] Evidence of domestic violence must be addressed in child custody decisions. Moreover, if the courts fail to appropriately evaluate domestic violence in child custody decisions, they send a signal to both the victims and the batterers that society is willing to tolerate behavior within a marriage that would otherwise be prosecuted. [FN66]

B. Domestic Violence is Irrelevant in Child Custody Decisions

Before the 1970s, both divorce and custody decisions focused on the morality of parental conduct. [FN67] A basis for divorce and child custody awards was cruelty. [FN68] Spousal abuse was viewed as cruelty, and therefore an abuser was generally not awarded custody. [FN69] However, because divorce was not as prevalent as it is today, divorces and custody decisions based on cruelty were limited.

In the 1970s, a movement toward no-fault divorce arose, and the focus shifted from the morality of the parents to the "best interest of the child." [FN70] With this new focus, the parents' relationship became increasingly irrelevant, especially if there appeared to be no physical effect upon the child. [FN71] As the relationship between theparents became less relevant, many family law attorneys no longer inquired into the intimate details of violence within the marriage. [FN72]

The shift in focus to the "best interest of the child" is considered a "gender-neutral" standard. [FN73] However, the factors considered in determining what is in the best interest of the child tend to favor the batterers--usually men. [FN74] In fact, significant weight is given to economic resources; however, this factor has a discriminatory effect on women because it is well known that men generally earn more money than women. [FN75] Moreover, the factors that traditionally favored the *411 mother, nurturing and past care giving, are gender-biased and can no longer be considered. [FN76]

In addition to the "best interest of the child," other standards have developed to consider in awarding custody. These standards include "friendly parent" and "frequent and continuing contact with parents" provisions. [FN77] Furthermore, joint legal and physical custody has become the preferred method of custody in most states. [FN78]

However, such standards present inappropriate considerations in custody decisions where there is domestic violence. Requiring a joint custody arrangement--in which the parties are hostile and violent--perpetuates the situation by necessitating constant communication and contact between the batterers and their victims. [FN79] Similarly, under a friendly parent provision, the abused spouse's unwillingness to share the child with the other parent could cause her to lose complete custody of her child. [FN80] Whereas domestic violence escalates after divorce, the victim puts herself at risk if she tries to abide by these provisions. [FN81] Therefore, such provisions unfairly impact victims of domestic violence.

"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." [FN82] The standards used to determine what is in the best interest of the child should include a consideration of the relationships that specifically impact on the child. [FN83] For instance, an abusive relationship between parents directly impacts a child, yet is rarely included in custody decisions. [FN84] "A batterer's violent tendencies*412 toward his wife should not be treated as separate and distinct from the batterer's relationship to his children." [FN85]

Accordingly, the courts must discard such perspective as having an unjust impact on victims of domestic violence by finding that domestic violence is relevant to custody decisions because 1) "a man who abuses his wife cannot be a fit parent because wife abuse is functionally equivalent to child abuse," and 2) "wife abuse does not necessarily end with a divorce because further contact with the abuser through joint custody or visitation provides opportunities for continued violence." [FN86] Judges must find that evidence of battering exists, be aware of the effect battering has on children, and consider domestic violence in crafting their child custody decisions. [FN87]

IV. California's Legislative Response"Many things we need can wait. The child
cannot. Now is the time his bones are being formed; his blood is being made;
his mind is being developed. To him we cannot say tomorrow. His name is
today."
GABRIELLA MISTRAL [FN88]

State law controls child custody determinations. [FN89] Consequently, there is currently no uniformity among the states as to the consideration given to domestic violence in child custody decisions. [FN90] California has been very progressive in recognizing the role domestic violence should play in child custody decisions. However, it was only four years ago that the California Family Code was finally amended to require judges to even minimally consider domestic violence in determining the "best interest" of the child. [FN91]

California uses the "best interest of the child" standard with a preference of joint custody. [FN92] Section 3011 of the Code lists factors for the court to consider in determining the "best interest" of the *413 child. [FN93] For example, one factor states that a judge must consider "[a]ny history of abuse by one parent or any other person seeking custody against any of the following: . . . (2) [t]he other parent; (3) [a] parent, current spouse, or cohabitant, of the parent or person seeking custody has a dating or engagement relationship." [FN94] The Code also states, "As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration." [FN95]

Currently, with AB 200, when the court makes an order for sole or joint custody to a parent accused of abuse, section 3011 of the Code is amended to require the court to state its reasons in writing or on the record. [FN96]

The judge still retains the same discretion as to the weight to give to the allegations of domestic violence, if any; but now he must memorialize his reasons for granting custody to the accused despite the allegations. Having the judge's reasons codified could help victims win custody cases on appeal because victims will have more than just abuse of discretion as a basis for the appeal. [FN97]

Section 3004 of the Code, which defines joint physical custody, has also been amended. [FN98] This section emphasizes that "[j]oint physical custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents." [FN99] This section is now subject to sections 3011 (best interest of the child) and 3020 (legislative findings). [FN100] This means that joint physical custody with continuing contact will not be preferred if it is not in the best interest of the child or if it does not ensure the health, safety and welfare of the child.

Two new paragraphs have been added to section 3020 of the Code. [FN101] The first paragraph makes the health, safety, and welfare of children "the court's primary concern in determining the best interest of children when making any orders regarding the custody . . . of children." [*414 FN102] This paragraph also states that "the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child." [FN103]

The second paragraph added states that "any court's order regarding custody . . . shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members" when a conflict exists between the two policies set forth in this section. [FN104]

In section 3040, the Code sets out the order of preference in awarding custody. [FN105] One factor the court must consider in making an order for custody is "which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent." [FN106] The amendment now requires that this consideration be consistent with sections 3011 and 3020. [FN107] Specifically, before evaluating a parent under this "friendly parent" provision, the best interest of the child and the child's health, safety, and welfare must be considered. The amendment to section 3040, therefore, recognizes that the "friendly parent" provision is not supportive of a victim of domestic violence who is trying to free herself from the abuser.

AB 200 was an attempt to add section 3044 to the California Family Code which would have established a "rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence . . . within the previous 10 years is detrimental to the best interest of the child, pursuant to section 3011." [FN108] The bill also listed specific factors to use in determining if the abuser has overcome the presumption. [FN109]

*415 As finally adopted, AB 200 emerged as a series of amendments, as outlined above, that will have little impact on how domestic violence is considered in child custody decisions. This is because the best interest guidelines remain imprecise and broad, and the judge, in his discretion, may consider the broadest range of evidence to no evidence. [FN110]

In California, custody continues to be awarded to forty percent of abusers who fight for it. [FN111] These child custody decisions made by the trial courts are generally not overturned by the appellate courts unless there is a finding that the trial court has "abused its discretion or that the award is contrary to the manifest weight of the evidence." [FN112] But there may be indications, at least on the appellate level, that California is changing and heading in the right direction. [FN113] This is evidenced in a recent California appellate ruling, where the court revoked custody from a father who had abused his wife, his children's stepmother. [FN114] The court found that based on allegations that the "minors are periodically exposed to violent confrontations . . . that endanger their physical and emotional safety," there was sufficient evidence to support removing the minors from the father's custody. [FN115]

Another approach that has been used to resolve custody disputes in California is mediation. However, mediation can be dangerous and very ineffective in a situation where there has been domestic violence. [FN116] This is because "effective mediation requires voluntary participation, relatively equal bargaining power, similar quality of representation, and approximately equal investment in the outcome." [FN117] To overcome some of the obstacles inherent in the mediation process for the abused spouse, California permits spouses to meet separately with investigators and mediators. [FN118] Additionally, AB 200 amended the mediation custody statutes, making them subject to sections 3011 and 3020 of the Code. [FN119] However, despite such protections, *416 it is contrary to public sentiment to permit batterers to mediate for the custody of their children that they intentionally expose to domestic violence. [FN120]

V. Evidence of Domestic Violence Must be a Rebuttable Presumption Against
Custody in California"In this country, no man has a license to beat and get
away with it, and no woman is obliged to accept a beating and suffer because of
it."
SURGEON GENERAL EVERETT KOOP [FN121]

Even after AB 200, courts in California are only required to consider domestic violence as a factor, among others, in assessing the best interest of children. [FN122] More properly, however, twelve states have adopted a rebuttable presumption against awarding custody to batterers when there is evidence of domestic violence. [FN123]

This automatic presumption represents a more progressive approach to custody decisions where there has been domestic violence than California's current approach. With this presumption, the burden is no longer on the victim to show concrete harm to the children and a connection between wife abuse and child abuse. [FN124] A presumption against joint custody recognizes that abuse of the victim may continue through joint custody arrangements, and therefore a batterer is unfit to be awarded custody. [FN125] Also, a statutory presumption against awarding custody to an abuser takes the discretion away from judges who may be uneducated or biased on the issue of domestic violence. [FN126]

A. Support for a Rebuttable Presumption

In 1990, Congress passed Concurrent Resolution 172, which acknowledged a connection between spousal abuse and the negative effect on the children who are exposed to the abuse. [FN127] In this resolution, Congress expressed its support for a statutory presumption *417 in determining child custody when there is evidence of domestic violence. [FN128] The resolution states that "for purposes of determining child custody, credible evidence of physical abuse of a spouse should create a statutory presumption that it is detrimental to the child to be placed in the custody of the abusive spouse." [FN129] Additionally, the resolution listed all of the factors previously addressed in this article assupport for a presumption. [FN130]

Congress' hope was that this resolution would send a message to spousal abusers that they will no longer be rewarded for their behavior, and they will no longer be able to threaten taking custody of their children in a divorce proceeding. [FN131] Furthermore, Congress hoped that the states would implement what was reflected in this resolution. [FN132]

In 1990, The National Council of Juvenile and Family Court Judges adopted a Model Code of Domestic and Family Violence which also established a presumption concerning custody. [FN133] Section 401 reads as follows:

In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is detrimental to the child and 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. [FN134] The Council cited substantial authority in support of this pre-sumption. [FN135]

Another recommendation for a presumption is found in A Report to the President of the American Bar Association. [FN136] The report states 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. Where there is proof of abuse, batterers should be presumed by law to be unfit custodians for their children." [FN137]

These influential associations conducted extensive research to conclude what is in the best interest of the child. Therefore, the states *418 must give great importance to these recommendations when creating child custody laws. In addition to the recommendations from these associations, "[t]he most powerful support for a rebuttable presumption comes from social science data, showing that failure to provide the strong protection mandated by this presumption will result in the exposure of countless children to a continuing cycle of violence." [FN138]

B. Arguments Against Establishing a Presumption

Opponents of a statutory presumption fear that there will be an increase in false accusations. [FN139] However, in any child custody dispute there is always the chance of false allegations since one parent often tries to gain an advantage over the other parent. [FN140] But with proper evidentiary standards requiring stringent proof, the protection the presumption affords the child outweighs any argument against it. [FN141]

Opponents also argue that a presumption may violate a parent's due process rights. [FN142] This is unlikely since "a rebuttable presumption against awarding a spousal abuser custody is rationally related to protecting the best interests of a child," and, additionally, the spousal abuser will always be given the opportunity to present evidence to rebut the presumption. [FN143]

Lastly, opposition to the presumption also comes from those who believe that judicial discretion should be preserved in child custody decisions. [FN144] But, because there may be a lack of understanding and/or the possibility of personal bias by judges concerning domestic violence, this argument should be given little weight.

C. Suggested Elements of a Rebuttable Presumption Statute for California

The proof necessary both to generate the presumption and to rebut the presumption must be concise and specific. The language of the statute must be clear and unambiguous to insure that the victim does not become the batterer, within the code, if she strikes the batterer to defend herself. [FN145]

*419 The California legislature should also review statutes of those states that have implemented such a presumption, ascertain which statutes have been the most successful, and then implement a statute which will afford the most protection to the children of California.

Furthermore, there must be mandatory education requirements for judges and attorneys on domestic violence issues. A better understanding of the dynamics of domestic violence will enable judges to assess the likelihood of children being exposed to future violence, and therefore craft fairer custody decisions. [FN146] Also, this knowledge will aid judges when using their discretion in evaluating the evidence presented in custody disputes where there is domestic violence. Similarly, an attorney will be better prepared to communicate with, and advocate for, his abused client when he understands why men beat their wives, and why women just don't leave.

VI. Conclusion

A parent who is a perpetrator of domestic violence acts directly contrary to the best interest of his child and to his child's health, safety, and welfare. Therefore, it is essential to amend the California Family Code immediately to provide for a rebuttable presumption against awarding a spousal abuser child custody.

A rebuttable presumption will stop a judge from granting custody to an unfit parent. One such outrageous decision occurred in the O.J. Simpson custody case, in which a California judge found that it was in the best interest of Simpson's children to place them with Simpson--a man who had a history of domestic violence and was even found liable for the death of their mother by a civil jury. [FN147] The judge recognized there was evidence of domestic violence, but that the violence was not recent. [FN148] Thus, the judge chose not to consider all the evidence of domestic violence. If a rebuttable presumption had been in place, the burden would have been on O.J. Simpson to prove he was a fit parent and could provide a non-violent home. [FN149]

Accordingly, a rebuttable presumption is crucial for the protection of all children. Moreover, the welfare of California's children can not be left to the whimsy of the judges.

*420 Furthermore, domestic violence breeds a culture of violence in future generations. A rebuttable presumption, by penalizing the perpetrators, will deter this escalating violence which has become a national tragedy with devastating consequences for all of society.

[FN1]. Hillary Rodham Clinton, It Takes a Village and Other Lessons Children Teach Us 128 (1996).

[FN2]. Id. at 131.

[FN3]. Domestic Violence Statistics, Pac. Bus. News, Nov. 17, 1997, available in 1997 WL 15021813.

[FN4]. Clinton, supra note 1.

[FN5]. Domestic Violence Statistics, Pac. Bus. News, Nov. 17, 1997, available in 1997 WL 15021813.

[FN6]. Id.

[FN7]. John Fantuzzo et al., Domestic Violence and Children: Prevalence and Risk in Five Major U.S. Cities, J. Am. Acad. Child & Adolescent Psychiatry, Jan. 1, 1997, at 116, available in 1997 WL 9933666.

[FN8]. Lynne R. Kurtz, Protecting New York's Children: An Argument for the Creation of a Rebuttable Presumption Against Awarding a Spouse Abuser Custody of a Child, 60 Alb. L. Rev. 1345, 1346 (1997).

[FN9]. A.B. 200, 1997-98 Reg. Sess. (Cal. 1997) (enacted).

[FN10]. Id.

[FN11]. Mary Lynne Vellinga, Child-Custody Measure Awaits Wilson's Verdict, Sacramento Bee, Sept. 21, 1997, available in 1997 WL 3307368.

[FN12]. Juvenile Courts Bar Association and Los Angeles Superior Court, Juvenile Courts Law and Procedures Seminar, Dependency Program Syllabus (1998).

[FN13]. Howard Davidson, American Bar Association, The Impact of Domestic Violence on Children 1 (Aug. 1994).

[FN14]. Id.

[FN15]. Id.

[FN16]. Linda R. Keenan, Domestic Violence and Custody Litigation: The Need for Statutory Reform, 13 Hofstra L. Rev. 407, 418 (1985) (footnote omitted).

[FN17]. Rosalind J. Wright et al., Response to Battered Mothers in the Pediatric Emergency Department: A Call for an Interdisciplinary Approach to Family Violence, Pediatrics, Feb. 1, 1997, at 186, available in 1997 WL 9620223 (citing Walker, Battered Women New York, NY: Harper & Row; 1979).

[FN18]. Fantuzzo, supra note 7, at 116.

[FN19]. Claudia Cuevas et al., Los Angeles Commission on Assaults Against Women, Surviving Domestic Violence 10 (1989).

[FN20]. Marjory D. Fields, The Impact of Spousal Abuse on Children and its Relevance in Custody and Visitation Decisions in New York State, 3 Cornell J.L. & Pub. Pol'y 221, 228 (1994) (footnote omitted).

[FN21]. Note, Developments in the Law: Legal Response to Domestic Violence, 106 Harv. L. Rev. 1597, 1610 (1993) (footnote omitted).

[FN22]. In re Heather A., 60 Cal. Rptr. 2d 315, 322 (1996).

[FN23]. Id. at 315.

[FN24]. Ruling: Spousal Abuse Can Affect Custody // Courts: The State Supreme Court Says a Child's Knowledge of a Parent's Abuse of the Other Parent May Be Reason to Take Children Away, Orange County Register, Mar. 13, 1997, available in 1997 WL 7421295.

[FN25]. Pauline Quirion et al., Protecting Children Exposed to Domestic Violence in Contested Custody and Visitation Litigation, 6 B.U. Pub. Int. L.J. 501, 508 (1997) (citing Judith Herman, Trauma and Recovery 100 (1992)).

[FN26]. Philip C. Crosby, Custody of Vaughn: Emphasizing the Importance of Domestic Violence in Child Custody Cases, 77 B.U. L. Rev. 483, 500 (1997).

[FN27]. Id. (footnote omitted).

[FN28]. Id. at 501 (footnote omitted).

[FN29]. Id. (footnote omitted).

[FN30]. Id. (footnote omitted).

[FN31]. Cuevas, supra note 19, at 11.

[FN32]. Crosby, supra note 26, at 501-02.

[FN33]. Id. at 502 (footnote omitted).

[FN34]. Id. (footnote omitted).

[FN35]. Id. (footnote omitted).

[FN36]. Id. at 501.

[FN37]. Id. (footnote omitted).

[FN38]. Cuevas, supra note 19, at 11.

[FN39]. Id.

[FN40]. Quirion, supra note 25, at 511 (footnote omitted).

[FN41]. Id. (footnote omitted).

[FN42]. Keenan, supra note 16, at 419.

[FN43]. Quirion, supra note 25, at 508-09.

[FN44]. Keenan, supra note 16, at 420.

[FN45]. Id. at 419 (footnote omitted).

[FN46]. Ruth Jenny & Kelly Gaines Stoner, Domestic Violence and the North Dakota Best Interests Statute, 72 N.D. L. Rev. 1011, 1016 (1996) (footnote omitted).

[FN47]. Id. (footnote omitted).

[FN48]. Quirion, supra note 25, at 509.

[FN49]. Id. at 509-10 (footnote omitted).

[FN50]. Jenny & Stoner, supra note 46, at 1020.

[FN51]. Cuevas, supra note 19, at 11.

[FN52]. Keenan, supra note 16, at 420.

[FN53]. Id. (footnote omitted).

[FN54]. Jenny & Stoner, supra note 46, at 1019-20.

[FN55]. Keenan, supra note 16, at 420.

[FN56]. Davidson, supra note 13, at 13.

[FN57]. Quirion, supra note 25, at 502-03.

[FN58]. Crosby, supra note 26, at 507.

[FN59]. Quirion, supra note 25, at 502.

[FN60]. Edward S. Snyder, Remedies for Domestic Violence: A Continuing Challenge, 12 J. Am. Acad. Matrim. Law. 335, 337 (1994) (footnote omitted).

[FN61]. Id. (footnote omitted).

[FN62]. Id. at 338 (footnote omitted).

[FN63]. Quirion, supra note 25, at 502.

[FN64]. Id. (footnote omitted).

[FN65]. Naomi R. Kahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1083 (1991).

[FN66]. Keenan, supra note 16, at 408.

[FN67]. Kahn, supra note 65, at 1043.

[FN68]. Id. (footnote omitted).

[FN69]. Kurtz, supra note 8, at 1347.

[FN70]. Note, Developments in the Law: Legal Response to Domestic Violence, 106 Harv. L. Rev. 1597, 1597 (1993) (footnote omitted).

[FN71]. Kurtz, supra note 8, at 1347.

[FN72]. Merry Hofford, M.A., et al., Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practices, 29 Fam. L.Q. 197, 212 (1995).

[FN73]. Kurtz, supra note 8, at 1358.

[FN74]. Snyder, supra note 60, at 350.

[FN75]. Id.

[FN76]. Id.

[FN77]. Hofford, supra note 72, at 212.

[FN78]. Id. ("Joint custody means joint physical custody and joint legal custody." Cal. Fam. Code § 3002. "Joint legal custodymeans that both parents shall share the right and the responsibility to make decisions relating to the health, education and welfare of a child." Cal. Fam. Code § 3003. "Joint physical custody means that each of the parents shall have significant periods of physical custody." Cal. Fam. Code § 3004. "Sole legal custody means that one parent shall have the right and the responsibility to make decisions relating to the health, education and welfare of a child." Cal. Fam. Code § 3006. "Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation." Cal. Fam. Code § 3007.).

[FN79]. Snyder, supra note 60, at 351.

[FN80]. Id. (footnote omitted).

[FN81]. Kurtz, supra note 8, at 1348.

[FN82]. Kahn, supra note 65, at 1042.

[FN83]. Id. (footnote omitted).

[FN84]. Id. (footnote omitted).

[FN85]. Note, Developments in the Law: Legal Response to Domestic Violence, 106 Harv. L. Rev. 1597, 1608 (1993) (footnote omitted).

[FN86]. Id. at 1598.

[FN87]. Kahn, supra note 65, at 1085-86.

[FN88]. Clinton, supra note 1, at 92.

[FN89]. Crosby, supra note 26, at 508.

[FN90]. Id.

[FN91]. Carol Ness, Twice-failed Abusive Dad Wins Half-time Custody Orange County Judge's Decision Questioned in Wake of Simpson Case, S.F. Examiner, Feb. 9, 1997, available in 1997 WL 4335341.

[FN92]. A.B. 200, 1997-98 Reg. Sess. (Cal. 1997) (amended Mar. 31, 1997); see supra note 76, defining joint custody.

[FN93]. Cal. Fam. Code § 3011 (West, WESTLAW through 1997 portion of 1997-98 Reg. Sess. and 1st Ex. Sess.).

[FN94]. Id.

[FN95]. Id.

[FN96]. A.B. 200, 1997-98 Reg. Sess. (Cal. 1997) (enacted); see supra note 76, defining sole custody and joint custody.

[FN97]. Vellinga, supra note 11.

[FN98]. A.B. 200, 1997-98 Reg. Sess. (Cal. 1997) (enacted); see supra note 76, defining joint physical custody.

[FN99]. Id.

[FN100]. Id.

[FN101]. Id.

[FN102]. Cal. Fam. Code § 3020 (West, WESTLAW through 1997 portion of 1997-98 Reg. Sess. and 1st Ex. Sess.).

[FN103]. Id.

[FN104]. Id. The two policies are 1) "that it is the public policy of this state to assure that the health, safety and welfare of children shall be the court's primary concern," and 2) "that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship and to encourage parents to share the rights and responsibilities of child rearing." Id.

[FN105]. A.B. 200, 1997-98 Reg. Sess. (Cal. 1997) (enacted).

[FN106]. Id.

[FN107]. Id.

[FN108]. A.B. 200, 1997-98 Reg. Sess. (Cal. 1997) (amended Mar. 31, 1997).

[FN109]. Id. (1) whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child, 2) has successfully completed a batterers' treatment program that meets the criteria outlined in the Penal Code, 3) has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate, 4) has successfully completed a parenting class if the court determines the class to be appropriate, 5) if on probation, or parole or restrained by a protective order, whether he or she has complied with its terms and conditions, 6) whether any further acts of domestic violence have been committed) Id.

[FN110]. Kahn, supra note 65, at 1071.

[FN111]. Yumi Wilson, Opinion Split on Custody for Divorced Batterers, S.F. Chron., June 18, 1997, available in 1997 WL 6699635.

[FN112]. Kahn, supra note 65, at 1071.

[FN113]. Ness, supra note 91.

[FN114]. Id.

[FN115]. In re Heather A., 60 Cal. Rptr. 2d 315, 317, 320 (1996).

[FN116]. Note, Developments in the Law: Legal Response to Domestic Violence, 106 Harv. L. Rev. 1597, 1614 (1993) (footnote omitted).

[FN117]. Id. at 1602 (footnote omitted).

[FN118]. Hofford, supra note 72, at 207.

[FN119]. A.B. 200, 1997-98 Reg. Sess. (Cal. 1997) (enacted).

[FN120]. M.A. Stapleton, Mediation is Not the Answer in Domestic Violence Cases, 143 Chi. Daily L. Bull. 3, May 22, 1997.

[FN121]. Cuevas, supra note 19, at 1.

[FN122]. A.B. 200, 1997-98 Reg. Sess. (Cal. 1997) (Background Sheet for AB 200 (Kuehl)).

[FN123]. Id.

[FN124]. Note, Developments in the Law: Legal Response to Domestic Violence, 106 Harv. L. Rev. 1597, 1613 (1993).

[FN125]. Id.

[FN126]. Kurtz, supra note 8, at 1365.

[FN127]. Id. at 1353 (footnote omitted).

[FN128]. H.R. Con. Res. 172, 101st Cong. (1990) (enacted).

[FN129]. Id.

[FN130]. Id.

[FN131]. Id.

[FN132]. Id.

[FN133]. Model Code on Domestic and Family Violence § 401 (Nat'l Council of Juvenile and Family Court Judges 1994).

[FN134]. Id.

[FN135]. Id.

[FN136]. Davidson, supra note 13, at 15.

[FN137]. Id. at 1 (footnote omitted).

[FN138]. Quirion, supra note 25, at 516.

[FN139]. Kurtz, supra note 8, at 1372.

[FN140]. Id. at 1373.

[FN141]. Id.

[FN142]. Id. (footnote omitted).

[FN143]. Id. (footnote omitted).

[FN144]. Ness, supra note 91.

[FN145]. Kurtz, supra note 8, at 1374.

[FN146]. Laura Crites & Donna Coker, What Therapists See That Judges May Miss, Judges' J., 43 (Spring 1988).

[FN147]. Jeff Kass & Greg Hernandez, Simpson Civil Case Verdicts Not Likely to Alter Custody Case, Most Experts Say, L.A. Times, Feb. 5, 1997, available in 1997 WL 2179369.

[FN148]. Wilson, supra note 111.

[FN149]. Id.