Failure to Protect

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One night, a man walked into the room where his wife lay next to their child in bed. With the baby in the room, he beat his wife hard enough that her body was covered with bruises the next day.

Now she is safe in a shelter–and he has custody of the child.

After he beat her, she fled to a shelter with the baby. But by doing what she was supposed to, she lost her son. When her husband filed for temporary custody, a family court judge awarded it to him. The judge was not swayed even by photographs of the woman’s bruises.

Judges are supposed to take domestic violence into account when deciding which parent gets custody, and whether the other parent will get to visit the children. After all, the safety of a child is at stake. But in the process of making the decision whether to award or deny custody to a parent, a judge is not required to give domestic violence in the home any more weight than a host of other considerations, ranging from parents’ salaries to their work schedules.

The judge’s deciding factor for granting custody to the husband? The fact that he remained in the family home, a more familiar environment for the children than where his wife now lives–in a shelter for battered women.

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Deciding how to award custody and visitation rights in cases that involve domestic violence is one of the most delicate and crucial tasks a Family Court judge faces. The case above, which an appellate panel is slated to review this fall, isn’t the first to raise alarm. In fact, years of violent assaults against mothers and trauma to kids prompted the New York state legislature to pass a law in 1996 that was supposed to prevent cases like hers from happening again.

Though it seems remarkable now, it used to be that judges didn’t have to consider domestic violence at all when they were making decisions about custody and visitation rights. The only factor they were supposed to consider was the “best interest of the child.”

In many cases, judges decided that the fact that one parent beat another had nothing to do with the child’s well-being once those parents were apart. In one instance, a judge awarded custody of a child to the man who had killed the child’s mother, ruling that “there is no evidence on this record that [the father] is physically dangerous to his children.” In another, a father beat the mother severely and repeatedly, ultimately hospitalizing her–and successfully sued for custody during her absence. Only occasionally would a judge rule that simply witnessing domestic violence could be harmful to kids.

The new state law was supposed to force Family Court judges’ gavels, requiring them to make domestic violence part of their calculus of custody.

But it didn’t tell them how they should consider it, a fatal vagueness that is the legacy of the law’s harrowing passage through the state legislature. Thanks to the badly compromised law, judges may still rule that men who beat their wives can make perfectly decent fathers.

Of course, not everyone who hits his partner is a risk to his children. But even some veteran advocates for battered women are surprised to hear how frequently people who abuse their partners also abuse their kids. Most researchers put the overlap between spousal battery and child abuse somewhere between 30 and 60 percent. One national survey of 1,000 battered women found that 70 percent of men who beat their wives were also reported to abuse their children. And a 1990 study of 6,000-plus families nationwide concluded that half of men who assault their wives frequently also abuse their children, and vice-versa.

In an informal survey of its foster children, Lakeside Family and Children’s Services found that 60 to 80 percent of the children who came into the agency saw violence between the adults at home. When Lakeside got a group of teenage girls in foster care together to talk about relationships, every single one had a horror story. “All of the girls had domestic violence in the home,” says Iris Witherspoon, the domestic violence coordinator at Lakeside. “One girl was talking about how her ribs were broken.”

Kids are hardly safe from trauma once their parents have split. Dr. Chris O’Sullivan, a researcher at the victim services agency Safe Horizon, conducted a study of the risks to mothers and children after separation. In it, she recounts the story of two children whose father picked them up at their mother’s house for their regularly appointed, court-ordered visit. Sitting them down on the couch, he tearfully explained to them that he was very sorry, but he was going to have to kill their mother.

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What might seem like common sense–that a father who severely beat a partner should be kept away from their kids–is in fact a recent revelation in the legal world. And it’s one that quickly runs up against some basic legal principles and civil rights.

Parental rights is one of them. Unless there’s a strong reason to terminate a parent’s rights to his or her child, a judge must take a parent’s petition for custody or visitation seriously, even if there are allegations of domestic violence. The threshold for terminating parental rights in New York State is quite high. In fact, it wasn’t until last year that the courts made indictment for murdering the other parent sufficient grounds for termination of parental rights.

Of course, there are also some very good reasons parental rights have such strong legal protections. For one thing, charges are not always true. Often, the crucial decisions in Family Court about what to do with a child are made before the court has had a chance to do an investigation. Many judges are reluctant to make drastic decisions based on allegations, so they make a decision to grant a temporary order of custody, often granting visitation to the other parent.

And the truth can often be hard to pin down. A man charged with domestic violence frequently responds with the same allegation against his partner. Judges have to decide, often very quickly, which story to take seriously. “Batterers don’t come in with horns on,” points out Brooklyn Family Court Judge Paul Grosvenor. “Some come in very well-dressed, well-spoken. And you might look at them and say, ‘Well, they’re OK.'”

So these cases still don’t have any hard and fast rules. “What judges are saying is things like ‘children should have access to their fathers, to both of their parents,'” says Karen Burstein, a former judge who resigned to run for New York State Attorney General in 1994, and was later appointed to the national Advisory Council on Violence Against Women. In principle, says Burstein, she agrees with this rationale, but she also thinks judges often take it too far. Their reasoning, says Burstein, goes something like this: “‘Well, he hit the mother, but he didn’t hit the child.'”

Judges have a couple of options in cases with allegations of domestic violence. They can award custody to the parent making the charge of abuse–usually the mother–and order that the other parent visit with the child only under someone else’s supervision. More commonly, judges grant an accused batterer “unsupervised” visits.

Though they can prohibit an accused batterer from seeing his children at all, that almost never happens. In a analysis of New York City custody and visitation petitions prior to 1996, Dr. O’Sullivan found that judges were just as likely to grant visitation to fathers who had court orders of protection against them as to those who did not. In fact, in the 1,692 cases she analyzed, not one denied custody or visitation to a parent whose violence had earned him or her an order of protection.

Those who work with battered women say their experience, not to mention court records, back up Dr. O’Sullivan’s research. “I’ve dealt with all kinds of cases, even cases where there is horrific abuse, I’ve had cases where she’s been bitten, stabbed, burned,” says Witherspoon. “But I have not ever had a judge deny visitation.”

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In Bay Ridge’s lush Leif Erickson Park, Margarita Acevedo looks over anxiously at her son, Jonathan, who is keeping himself busy a few yards away slashing at flowers with an umbrella. “He loves bees,” she explains, smiling and shaking her head.

Although Margarita loves the park, it’s not entirely easy for her to relax here. The week before, her 15-year-old daughter Jasmin was playing tennis in the park (“with a boy she likes”) when Jasmin’s father, Julio, pulled up and made a scene. Jasmin says he made a fist and ordered her to go home. “She came home saying, ‘Daddy made us come home. He said we’re not supposed to be in the park,'” Margarita says, shaking her head. “He’s still trying to control them.”

For Margarita, letting her children play in the park is an easy freedom. For years, she has faced the pain of sending them alone to visit a man who she believes may hurt them, who has in the past hurt her very badly. Last April, Margarita won a round in her 12-year battle with her estranged husband: a court order to get her children’s visits with him supervised by his mother. It’s not that she doesn’t want the children to see Julio, says Margarita. “I’m trying to promote their relationship with their father,” she says mournfully. She says such things often, with a hint of apology.

But for her, it’s a delicate balance to help them maintain their relationship with their father–even convincing them to visit him when they don’t want to–and protecting them from a man who she says once covered her with bruises and, she says, repeatedly hit both children. (On the advice of his attorney, Julio Acevedo refused to speak to City Limits.)

There were times, she says, when Julio sent the police to force Jasmin to visit him. “I didn’t want to see him,” Jasmin says, recalling one such incident, “and the cops came, and I told them ‘I feel sick, I don’t want to go,’ and they said, ‘You have to. This is a court-ordered visitation.’ And they made me go.” She was 11.

Years before that, when Julio first started hitting Margarita, she got an order of protection to keep him away from her and the kids.

She says he violated it repeatedly. After one especially bad episode–“He really hit me very hard that time,” she says–she took the children and fled to a battered women’s shelter. He hired a private detective and found her. The next time, she fled even further, to Florida, “to lose him, to gain some time.” She got a job and went back to college, something she had stopped doing when she married Julio.

Then the police came. Because she had left the state–a move that effectively denied Julio his visitation rights, although she claims she let him visit–a judge awarded Julio custody of the children.

“That was a very, very bad time,” says Jasmin now, about the days with her father. “I could not concentrate in school. I used to speak up about it in school. I said I was being hit, but somehow they never saw it. They never looked further into it.”

Eventually, someone did. Margarita says she got a call from the Administration for Children’s Services, telling her Jasmin said Julio had hit her. She gave up and went back to him, in order to be there for the children. “He had custody of the children. I was nothing,” she says.

But in 1994, after reporting a violation of an order of protection, she won custody herself. The decision to give Margarita custody stands out as one of the few times, prior to the 1996 law, that a court took violence into account when making a custody decision. (It didn’t help Julio’s case that he testified: “You touch a woman, they bruise.”)

After that, Margarita had custody, while Julio got overnight visits and two weeks with the kids in the summer. But when Julio allegedly kicked Jasmin and threw Jonathan to the floor, in 1998, Jasmin had had enough. (Jonathan’s school reported the allegations to ACS, which deemed them substantiated after an investigation. However, its findings are considered to be for internal use, not a legal document.) Then 14, she wrote a letter to the judge saying that although she wanted to have a relationship with her father, she felt that he did not care for her and that being with him made her nervous. “I cried when I read it,” says Margarita.

After that, she refused to let Julio see the kids. He took her to court to enforce the visitation order. She, in turn, filed a petition to get the visits supervised. They both got what they wanted. Her lawyer, Safe Horizon’s Liberty Aldrich, believes Margarita won supervised visitation only because Julio failed to show up to court on time.

Now he picks up the children every other Saturday at 10 a.m. and drops them back off at 6. The visits are supposed to be supervised by Julio’s mother, although Jonathan says she is not always there. Because Jasmin is older now, she doesn’t have to go if she doesn’t want to, but usually she does. She likes to see her father, to go out with him, have dinner. He is, after all, her father.

“I think he realizes, now,” says Jasmine, slowly, “that if he wants to be able to spend time with us, he’s going to have to cool it.”

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Not every parent may be so willing to deal with their former abuser for the kids’ sake. But most mothers want to make sure that their children can continue to see their father and still be safe. It’s an endless balancing act, says Lakeside’s Witherspoon. “Battered women become experts at this kind of thing because they have to,” she says. “They learn what to do to keep their children safe.”

It’s not just the responsibility of mothers. The city’s Administration for Children’s Services, charged with preventing child abuse and neglect, is also supposed to watch out for kids. But instead of enlisting mothers as partners, ACS has cut them out entirely–by rushing to put their children in foster care.

Charging mothers with “failure to protect” their children from abuse or from witnessing domestic violence, ACS has sent an unknown number of children into foster care. It’s a drastic response that keeps kids safe from physical abuse–but at a high price to them and their mothers.

“It’s misguided, but its certainly a recognition that domestic violence counts,” says Sanctuary For Families legal services director Dorchen Leidholdt. Like other advocates, she gives ACS credit for taking domestic violence seriously as a threat to kids, certainly more seriously than the courts do. “But to turn this into a weapon against victims is dangerous. The last thing children need when they’re exposed to domestic violence is to be removed from the person who is trying to protect them from it.”

Like others who work with battered women and their children, Leidholdt has seen the very real harm caused by the misguided policy: children traumatized, first by witnessing violence between their parents, then by being taken away from both parents and consigned to the limbo of the city’s sometimes nightmarish foster care system. (ACS declined to comment on the policy.)

Failure-to-protect, which family advocates say is being used more and more often, was legitimized by a 1998 State Supreme Court decision. Taking into account the growing body of research showing that seeing domestic violence hurts kids, the court sensibly ruled that witnessing vicious incidents constituted “imminent emotional harm” that justified putting children in foster care. The court concluded that in child neglect cases, parents abusing each other should be considered as serious a threat to a child’s safety in as parents doing drugs or failing to provide medical treatment.

ACS took the decision as a green light to move ahead with its failure-to-protect policy. But though the agency has legal ground to stand on, its reasoning doesn’t hold up in the real world, where the policy frequently punishes mothers and children in an attempt to protect them.

In one case in Queens, a mother found out her partner was raping one of her kids. She fled to a shelter, taking all four children; he immediately went to court and, despite her allegations, won temporary custody of two of the children. A court-ordered investigation later upheld her rape allegations. The result? Even though the court had sent the kids to her former partner, she was charged with failing to protect the children, and all four kids went into foster care.

“We’re seeing cases where [a battered parent] takes appropriate action and still gets charged with failure to protect,” says Sanctuary’s Leidholdt. “It puts victims in a terrible double bind–it makes it very dangerous for women to go into court and ask for an order of protection.”

Leidholdt and others fear that mothers may keep quiet about violence rather than risk having their children taken by ACS. “Do you know what it feels like when a woman says ‘I should never have called the cops’?” asks Witherspoon. “I have had women say that to me many, many times.”

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Keeping domestic violence behind closed doors was not what family advocates had in mind when they pushed New York State to pass a law protecting children from their parents’ abusers. Among their strongest arguments was the one ACS is now using to take children away from battered women: that witnessing domestic violence causes deep emotional harm to kids.

In family courts, “there was still a sense that when there’s battering in the home, that someone just lost their temper, that it was a marital dispute,” says ex-State Senator Catherine Abate, who sponsored a bill to keep kids safe from domestic violence. “For some of the judges that weren’t as enlightened, it was a way to educate them.” What Abate wanted was what 14 other states now have: a law that would deny custody to perpetrators of domestic violence unless they can prove in court that they are fit parents. Those laws also make it much more difficult for them to get unsupervised visitation.

But a number of lawmakers, particularly upstate Republicans, contended that such a law would give women an unfair advantage in divorces. An organized father’s rights lobby helped convince them to stonewall Abate’s bill. “The father’s rights movement had a lot of the upstate senators’ ears. There was no way that the Senate was going to do a more aggressive bill,” recalls Abate.

In the end, the Senate rejected her bill. Meanwhile, the House passed the bill that has now become law: The one that allows judges to ignore the effects of domestic violence.

It was weak–but better than no law at all, advocates reasoned. “For us, it was a huge victory,” sighs Jill Zuccardy, an attorney with Sanctuary for Families.

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Judges do have a reasonable option in tough cases. They can order supervised visits, overseen by professionals, between children and the fathers who abused their mothers. But the nonprofit agencies that provide professionally supervised visitation are so overburdened that they don’t even bother to maintain waiting lists. Instead, slots in supervised visitation programs go to whoever happens to be in the right courthouse at the right time. “You sort of go there with your hat in your hand, hoping there’s an agency that can take your case,” says Judge Grosvenor. “And you’re competing with your colleagues for who can get that slot.”

For the thousands of custody cases a year with allegations of domestic violence, New York has about 100 slots for supervised visitation at any given time, according to new research by the Domestic Violence Task Force of the city’s Child Welfare Committee. Unlike in the eight states that fund supervised visitation, there is no source of public money for these programs in New York. Instead, they subsist on private donations, grants and fees.

Even when space can be found, the programs may compromise the safety of mothers and children. A survey conducted by the task force, found that security at many of the sites was minimal. At one site, a father was permitted to leave the building with his daughter, even though he was not supposed to be alone with her.

Judges say they like supervised visits because they can get a chance to make truly informed decisions about the fate of the children. “Over a period of time, people will revert to who they are. That’s why supervised visitation is good: It gives you a chance to really see this person over a period of time, their mood swings,” says Judge Grosvenor. “If that were just a normal part of the procedure–oh man, that would be so great. I wish that could be done in almost every case.”

But until judges have somewhere safe to put children, they will have to choose between impossibilities: between sending them somewhere that may not be safe or cutting kids off from their parents entirely. It’s a choice no judge should have to make, says Karen Burstein. “There has to be a middle place, but the middle place doesn’t exist,” she says. “And that’s the great tragedy.”