Lawyers Manual - Unified Court System

Representing Domestic Violence Victims in Child Welfare Cases 83
hold child welfare agencies, attorneys, and lower courts to the standards
enunciated by the Court of Appeals in Nicholson.
The Myths Regarding Child Welfare and Domestic Violence
Battered mothers have at times been charged with neglecting their children
when they have done little or nothing more than endure abuse by an intimate
partner. The theory underlying a neglect prosecution against a battered mother is
that she “failed to protect” her children from domestic violence. Use of the generic
phrase “failure to protect” in the context of domestic violence is misguided:
The word failure implies circumstances that are controllable,
that is, the opportunity was available not to fail. In the context of
domestic violence, this suggests that the failure was due to the
mother not taking some action that would have protected her
children. However, domestic violence is unlike other acts of
omission, such as failure to provide medical care, because the
probability for a successful outcome — protecting the children
from witnessing further abuse — may be relatively low. 10
Another misconception in many neglect prosecutions against battered
mothers is that all the victim had to do to protect her child was leave the abuser.
Outsiders often conclude that separating from the abuser is a way to end the
violence. Yet, as the New York State Legislature found “studies demonstrate that
domestic violence frequently escalates and intensifies upon the separation of the
parties.” 11 The Court of Appeals too, in its ruling in Nicholson, has recognized
that separation should not be used as a litmus test for assessing a battered
mother’s commitment to her children’s safety and well-being.
A battered mother also may be judged harshly if she did not pursue criminal
action against the abuser although battered mothers often have good reason to
forgo criminal remedies. The Court of Appeals, in People v Alexander, recognized
that, “[a]lthough the abusers’ guilt may be clear and provable, many victims of
domestic violence decide not to pursue charges for a host of reasons, including
fear of retaliation, financial dependence and threats of violence. . . .,” 12 and in
Nicholson added that declining to prosecute may itself be an exercise of care.
The concept of safety planning, which has long been the cornerstone of
domestic violence intervention, is premised on the belief that a battered mother
usually is the best judge of what actions are most likely to keep her and her