Protecting Children From Domestic Violence

Rebuttal Presumption Statute:

A Solution toward Protecting Children From Domestic Violence

Sharie Robinson, JD 2007

Domestic Violence is a destructive behavior that affects the entire family. We tend to focus primarily on the women who are encountering the physical and emotional abuse, but sometimes overlook the trauma children experience. To better protect the needs and interest of children, the Vermont Legislature should amend the “Best Interest of Child” statute to incorporate a Rebuttal Presumption against custody in Domestic Violence. This statute prevents individuals that abuse their spouses from obtaining custody of their children. The implementation of this statute is necessary to protect children witnessing their mother continued abuse; to keep them from developing emotional and behavior problems to prevent a cycle of violence from generation to generation.

Presently, there is an estimate of 3.3 million to 10 million children in the United States that are exposed to domestic violence each year. This exposure to domestic violence leads to many mental and physical disorders that can disrupt healthy development and prevent progress in school. Many children imitate these violent behaviors in future relationships and continue the cycle from generation to generation.

Thus, to help children grow and develop in a healthy and safe way, it is important to implement measures that will prevent children from being exposed to family violence.

Currently, Vermont utilizes the “best interest of the child” standard to handle divorce and child custody cases.

“…the court shall make an order concerning parental rights and responsibilities of any minor child of the parties. The court may order parental rights and responsibilities to be divided or shared between the parent on such terms and conditions as serve the best interest of the child. When the parents cannot agree to divide or share parental rights and responsibilities the court shall award parental rights and responsibilities primarily or solely to one parent…”

The "Best Interest of the Child" is a friendly statute that tries to meet the needs of the child by working with both parents to provide a healthy and stable environment. However, it is not effective in domestic violence cases. For example, if the judge orders joint custody for a couple that has had incidents of domestic violence, then the child remains at risk. In a joint custody arrangement, the abuser still has constant contact with the victim through the child. Additionally, the victim may be reluctant to allow the child to visit the other parent because of the potential abuse that could be afflicted upon the child as a result of the separation or divorce. Moreover, the victims’ compliance with the judges’ order puts the victim back into a continuous cycle of abuse, manipulation, and domination, which the state should be preventing as an overall objective. The current law is thus ineffective in protecting the child from further abuse and fails to prevent the victim from involvement with her abuser.

In domestic violence cases, the court must take domestic violence incidences into account in determining a child custody case. An abusive parent is not a fit parent because battering a child’s mother is equal to child abuse.

Solution: Rebuttal Presumption Against Custody in Domestic Violence

Implementing a statutory provision that has a rebuttal presumption against custody when domestic violence is present is an effective way to protect children. The presumption will not burden the victim with providing evidence of correlation between the wife abuse and child abuse from witnessing domestic violence. A presumption helps to prevent judges from awarding custody to an unfit parent who commits domestic violence. Moreover, a rebuttal presumption would help to cast a light on the continue abused that could follow if a judge grants joint custody. This statute is crucial in circumstances where judges are uneducated or biased on the issue of domestic violence and believe that the best interest of the child is to always have both parents involved in the child's life. Therefore, the Vermont legislature should act now to make our children lives safer and a future without family violence.