Lawyers Manual - Unified Court System

90 Jill M. Zuccardy
Non-Respondent Mothers
CPS may file a neglect petition against the abuser exclusively, without
naming the mother. The non-respondent mother will be notified of the proceeding
against the abuser and has a right to appear as an interested-party intervenor and
to participate in all arguments, fact-finding and dispositional hearings insofar as
they affect the custody and well-being of the child. 31
Participants in a child welfare proceeding involving domestic violence tend
to categorize a non-respondent mother as “cooperative” or “uncooperative,” but
the reality of the non-respondent mother’s involvement in the case is not so
simply defined. An allegedly uncooperative mother is frequently nothing more
than a mother who has her own position on what is necessary for the protection
of herself and her child, a position that is based on the reality of her daily life
and her intimate knowledge of the habits of the abuser. The attorney may need
to remind CPS that the goal is ensuring safety of the child and that a neglect
prosecution against the abuser may undermine that goal.
A battered mother also should be encouraged to take advantage of the
protections offered to her in a neglect proceeding against the abuser. CPS will
take responsibility for arranging safe visitation between the abuser and the child,
thereby relieving her of this difficult task. CPS has the power to obtain an order
of protection on behalf of the mother and child including exclusion of the abuser
from the home, in some instances until the child’s eighteenth birthday. 32 A neglect
finding against the abuser may be used in custody or visitation proceedings that
occur after CPS ceases its involvement with the family.
A non-respondent mother must decide whether she should file separate custody
or family offense petitions. Since the non-respondent mother has the right to
participate in the neglect proceeding, these petitions may complicate and delay the
case procedurally and may offer her no greater relief. On the other hand, the other
proceedings assure that the mother can assert her right to seek independent and
continuing relief beyond what CPS pursues and guarantee that, if a neglect finding is
not entered, the court continues to have jurisdiction over the issues of visitation and
protection. If the mother files her own custody or family offense petitions, she should
seek to have them consolidated with the dispositional phase of the child welfare case.
If the battered mother is a non-respondent in a neglect case against the abuser,
the attorney usually will not put on a case at trial but rather will provide relevant
evidence through cross-examination or at disposition. However, CPS is likely to
call the non-respondent mother to testify. The attorney should prepare her to
testify and may even offer proposed questions to the CPS attorney.