A Judge’s Guide

I. INTRODUCTION
That children are adversely impacted by domestic violence 2 is now well documented 3 and
intellectually understood. Yet, intervener 4 and court practices in some jurisdictions continue to
reflect the out-dated notion that if children have not been physically battered, evidence of
domestic violence will be of little import in fashioning orders and agreements. Yet, empirical
studies now document that even children’s exposure to family violence greatly increases the
likelihood of internalized and externalized trauma. 5 In response, some states have enacted
statutes imposing sanctions for adults who are perceived as not adequately protecting child
witnesses to domestic violence. 6 Absent effective interventions, the abused parent and children
2 “Domestic violence” occurs when one intimate partner uses physical violence, threats, stalking, harassment, or
emotional or financial abuse to control, manipulate, coerce, or intimidate the other partner. Roberta Valente,
Domestic Violence and the Law, THE IMPACT OF DOMESTIC VIOLENCE ON YOUR LEGAL PRACTICE,
THE AMERICAN BAR ASSOCIATION COMMISSION ON DOMESTIC VIOLENCE (1996).
3 See, Louis Dixon, Catherine Hamilton-Giachritisis, Kevin Browne, and Eugene Ostapuik, The Co-Occurrence of
Child and Intimate Partner Maltreatment in the Family: Characteristics of the Violent Perpetrators, 22 J. OF
FAMILY VIOLENCE 675,676 (November 2007) (documenting with numerous empirical studies the dangerous
overlap of child physical and sexual abuse with adult, intimate partner violence); Peter G. Jaffe, Nancy K.D.
Lemon, and Samantha E. Poisson, CHILD CUSTODY & DOMESTIC VIOLENCE, A CALL FOR SAFETY
AND ACCOUNTABILITY (2003); Mildred Pagelow, Effects of Domestic Violence on Children and Their
Consequences for Custody and Visitation Agreements, 7 MEDIATION QUARTERLY (1990); Peter Jaffe, D.
Wolfe and S. Wilson, CHILDREN OF BATTERED WOMEN: ISSUES IN CHILD DEVELOPMENT AND
INTERVENTION PLANNING (1990); Bowker, Arbitell, and McFerron, On the Relationship Between Wife
Beating and Child Abuse, FEMINIST PERSPECTIVES ON WIFE ABUSE (1988); Peter Jaffe, et. al,
CHILDREN OF BATTERED WOMEN, (1990); B. Rabin, Violence Against Mothers Equals Violence Against
Children: Understanding the Connections, 58 Al. L. Rev. 1109, 1113 (Spring 1995).
4 Intervener will herein mean those professionals providing any services to adult or child victims, including, but
not limited to advocates, batterer’s intervention program staff, child protective services’ staff, child care providers,
defense attorneys, educators, faith community leaders, family law attorneys, judges, juvenile justice staff, law
enforcement officers, medical and mental health providers, parole and probation officers, and prosecutors.
5 See, Chantal Bourassa, Co-Occurrence of Interparental Violence and Child Physical Abuse and Its Effect on the
Adolescents’ Behavior, 22 J. OF FAMILY VIOLENCE 691 (November 2007) (reporting that “exposure
exclusively to interparental violence also has definite negative impact; for example, teens who are only exposed to
interparental violence exhibit internalized and externalized symptoms more frequently than do those who have
been neither subject to physical abuse from a parent nor exposed to interparental violence.”)
6 Although these are somewhat controversial because of fears that the battered mother will be erroneously blamed,
several states provide an increased penalty where children witness domestic violence. See, e.g. Fla. Stat. §
921.0024 (b) (2007) Domestic violence in the presence of a child, “If the offender is convicted of the primary
offense and the primary offense is a crime of domestic violence…which was committed in the presence of a child
under 16 years of age who is a family or household member…with the victim or perpetrator, the subtotal sentence
points are multiplied by 1.5. (providing for an enhanced penalty on the Florida Criminal Punishment Worksheet);
Wash. Rev. Code § 9.94A.535(h) (2008) Departures from Guidelines, “The current offense involved domestic
violence…and one or more of the following was present: (ii) The offense occurred within sight or sound of the
victim's or the offender's minor children under the age of eighteen years (listing factors that justify a departure
from sentencing guidelines); see also, Cal. Pen. Code § 1170.76 (2007) Specified relationship with minor or victim
as an aggravating circumstance for certain crimes: “The fact that a defendant who commits or attempts to commit a
violation of [sexual assault, assault with a deadly weapon, or infliction of injury on present or former spouse or
cohabitant or parent of child] is or has been a member of the household of a minor or of the victim of the offense,
or the defendant is a marital or blood relative of the minor or the victim, or the defendant or the victim is the
natural parent, adoptive parent, stepparent, or foster parent of the minor, and the offense contemporaneously
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