Domestic violence issues are governed by federal, state and local laws. In addition to targeted victims, domestic violence may also have a strong impact on children. Such effects may include child custody and visitation, restraining orders, protection of children from the risk of harm and terminating parental rights.

 

Domestic violence may generally be defined as a crime of assault against an intimate partner, child or other family or household member. Domestic violence generally occurs as a pattern over time and can take a variety of forms including:

Although anyone may be a batterer or a victim, most domestic violence cases typically involve women as victims. As a legal issue, domestic violence cases may encompass various areas of federal and state law including criminal law, family law, juvenile law, probate and civil law.

 

In 1994, Congress enacted the Violence Against Women Act (VAWA) to improve the prevention of and protection against domestic violence. VAWA helped establish funding to prosecute domestic abusers, shelter battered women and also created new penalties for abusers. However, VAWA has faced some criticism with regard to its overall effectiveness. One limitation, in particular, has been the proposed inadequacy of VAWA in addressing the impact of the effects of domestic violence on children. Even where children are not direct victims of physical abuse, they can be severely affected by domestic violence in the home.

 

VAWA expired in September of 2005. As of December, 2005, both the House and Senate approved the extension of VAWA for another five years. On January 5, 2006 President Bush signed VAWA 2005 Reauthorization into law.

 

Many state family laws consider the best interest of the child in awarding custody. As a result, many state laws are designed to encourage, support and sometimes force joint custody agreements where feasible. However, this concept directly conflicts with the recent trend of domestic violence cases which recognize that spouse abusers are generally not ideal parents. Child custody and visitation typically becomes an issue in domestic violence cases when the battered parent decides to leave the abuser.

 

Most states currently have laws requiring domestic violence to be considered as one factor in child custody and visitation cases. Several states now have a presumption that it would not be in the child's best interest to be placed with the perpetrator of domestic violence due to the risk of harm to the child. Prior to these laws, domestic violence was considered to be irrelevant in deciding which spouse should be awarded custody of the children.

 

Visitation rights in domestic violence cases are more complex and visitations may need to be supervised. However, supervised visitation can be prohibitively expensive for low income families.

 

One remedy against domestic violence, available in all states, is for the battered spouse to obtain a restraining order against the abusive spouse. Although the duration and scope of a restraining order can vary depending on the state law, it can often be issued to protect children from domestic violence as well.

 

For example, in California, a restraining order can be issued in family court to last for up to three years to protect the victim of domestic violence, the children and any other household member. A restraining order in California can also address other issues such as the repayment of expenses caused by the violence and anger management treatment for the batterer. Some states also address other issues in the context of the restraining order action, such as child custody, visitation and child support, rather than requiring the victim to bring a separate court action to determine these issues.

 

There is a heightened risk of child abuse or neglect in domestic violence cases. Significantly, some states make it a crime where a battered spouse fails to protect their children from the abuse. Criminal charges could potentially attach if the victim spouse knew or should have known that the child was also being abused and failed to try to stop the abuse. In addition, all states have child welfare agencies which have a duty to investigate instances of child abuse. Where abuse is detected, the state may remove the child from the home either temporarily or permanently.