A Judge’s Guide

compounds the difficulties, with temporal delays increasing the likelihood of destroyed
evidence. 138
C. Children are traumatized by witnessing the abuse, whether their pain and rage are
turned inward or vented on others. Frequently, the children have witnessed the domestic
abuse, either by being present in the same room or hearing it. 139 They are traumatized by
seeing their parent harmed, and often express anger at themselves for not being able to protect
the abused parent. Some children are furious with the abuser, while others are upset with the
victim for not figuring out how to leave and protect herself and the children. After age five or
six, some children may disrespect the victim for her perceived weakness, and identify with the
batterer. 140 Still other children risk injury when intervening to try to protect their mother or
si;blings from the batterer. 141 Children who witness domestic violence demonstrate the same
symptoms as physically or sexually abused children, including psychosomatic, psychological
and behavior dysfunction. 142
D. Courts should presume that a batterer is not fit to be the sole or joint custodian of the
children. 143 Just such a presumption was unanimously passed by Congress in 1990, in response
to the realization that too many batterers were able to present well in court and obtain custody
of the children. 144 Most states now require, as does Texas, 145 that courts must consider
evidence of domestic violence in making custody determinations. 146 In fact, Texas case law has
created a preference that the non-violent parent be appointed managing conservator (sole
physical custodian). 147 However, too often the courts have minimized or rationalized the abuse,
as well as its impact on the children. 148 Thus, family advocates applaud Louisiana’s 1992
138 Susan Morison & Edith Greene, Juror and Expert Knowledge of Child Sexual Abuse, 16 Child Abuse &
Neglect 595, 596 (1992) (noting the infrequency of physical or medical evidence).
139 Daniella Levine, Children in Violent Homes: Effects and Responses, 68 FLA. B. J. 38, 62 (Oct. 1994).
140 Laura Crites and Donna Coker, What Therapists See That Judges May Miss: A Unique Guide to Custody
Decisions When Spouse Abuse is Charged, THE JUDGES JOURNAL (Spring, 1988).
141 Davidson, CONJUGAL CRIME: UNDERSTANDING AND CHANGING THE WIFE ABUSE PATTERN
119 (1978).
142 See Phillip C. Crosby, note, Custody of Vaughn: Emphasizing the Importance of Domestic Violence in Child
CustodyCases, 77 B.U.L. REV. 483, 500 (1997); Lynne R. Kurtz, note, Protecting New York’s Children: An
Argument for the Creation of a Rebuttable Presumption Against Awarding a Spouse Abuser Custody of a Child, 60
ALB.L.REV. 1345, 1350 (199); 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); and D. Kalmus, The Intergenerational Transmission of Marital Aggression, 46 J.
MARRIAGE & FAM. 11-19 (1984).
143 See Kurtz, Id.; and See generally, Violence Against Women Office, Child Custody and Visitation Decisions in
Domestic Violence Cases: Legal Trends, Research Findings, and Recommendations, sec. 3 (December 2, 1999)
.
144 H. Con. Res. 172, 101st Cong. (passed 9-27-90, passed unanimously 10-25-90).
145 See e.g., Texas Family Code sec. 153.004(a) mandating that the court consider evidence of domestic violence in
deciding which parent should receive custody.
146 Barbara Hart, State Codes on Domestic Violence: Analysis, Commentary and Recommendations, JUV. & FAM.
COURT JOURNAL 43 (1992).
147 Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex. 1990).
148 See, What the Legal System Should Do For Children in Family Violence Cases, supra note 127; see also, e.g.
Pena v. Pena, 986 S.W.2d 696 (Tex. Appeals – Corpus Christi 1998) While the Court found that there was
“uncontroverted testimony” concerning three incidents of physical violence against the mother by the father, these
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