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Analysis of State Actions on Important Issues

Children's Exposure to Domestic Violence: Is It Child Abuse?

January 2002
Volume 27, Number 1

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Each year, millions of children are exposed to incidents of adult domestic violence. Children in violent households are at increased risk of physical abuse and often experience heightened levels of depression, anxiety and aggression. Policymakers are concerned about the effects of domestic violence on children's safety and well-being. Some are considering whether to treat exposure to domestic violence as child maltreatment and to require that such exposure be reported to and investigated by child welfare authorities. Some domestic violence experts have criticized this approach as unnecessary and counterproductive. This report reviews what states have done, summarizes the arguments for and against this new and controversial strategy, briefly reviews some alternative policy approaches to the problem, and identifies some key issues for legislators.

Children and Domestic Violence:
The Child Welfare System's Response

The child welfare community has long recognized that exposure to domestic violence poses risks to children's emotional and physical well-being. Some child welfare agencies have adopted operational definitions of emotional abuse or neglect that include exposure to domestic violence. The congressionally mandated national incidence studies of child abuse and neglect define emotional neglect to include "chronic or extreme spouse abuse or other domestic violence in the child's presence." In addition, many states have defined other forms of maltreatment, such as child endangerment, which have been used to warrant intervention in some domestic violence situations.

Nevertheless, child abuse and domestic violence often are treated as separate issues, with little coordination and communication between child welfare agencies and battered women's advocates and service providers. In fact, the child welfare and domestic violence fields traditionally have viewed one another with mistrust as a result of their differing missions, cultures and training. The principal conflict between domestic violence advocates and child protection workers centers on the tendency of caseworkers in at least some jurisdictions to make formal findings in child maltreatment investigations that battered women failed to protect their children. The two sides of this conflict may be summarized as follows.

• Child welfare workers often interpret a mother's decision to remain in a violent relationship and not to seek protection from the police and the courts as a failure to protect her children from harm. This interpretation often leads child welfare authorities to remove the children from home. Although allegations of "failure to protect" may be common on the front lines of child protection, most child welfare experts agree that this practice often is harmful to mothers and their children and should be the exception rather than the rule.1

• For their part, domestic violence advocates claim that caseworkers and judges generally do not understand the complex dynamics underlying a woman's decision to remain in a violent relationship. For example, many abused women stay with their partners because they are financially dependent on them and because leaving or seeking other forms of protection may increase the risk that the batterer will retaliate against them or their children. Under these circumstances, advocates argue that allegations of "failure to protect" and removal of children only revictimize both mothers and their children. They contend that, instead of blaming victims, child welfare and law enforcement authorities should focus on perpetrators and hold them accountable for the harm to children caused by their violent acts. For example, child welfare agencies should have the authority to order a perpetrator to leave the household.

Expanding the Definition of Child Abuse

Against this backdrop of disagreement between domestic violence advocates and child welfare agencies, several states have broadened their definitions of child maltreatment to include children's exposure to domestic violence. In 1998, Alaska amended the definition of "child maltreatment" in its child protection statutes to include, among other things, exposure to conduct by a household member against another household member that constitutes homicide, assault or sexual assault.2 Three other states-Delaware, Georgia and Utah-define domestic violence in the presence of a child as a form of criminal child maltreatment but have not amended their child abuse reporting statutes to require reporting of such crimes.3 These changes to the criminal code have nevertheless affected reporting and agency practice. For example, Delaware police routinely refer cases of children's exposure to domestic violence to the state child welfare agency, which is required by state law to investigate any report that alleges criminal child maltreatment.4 The Division of Child and Family Services in Utah interprets its statute as requiring child welfare involvement in cases of children's exposure to domestic violence.

Proponents of expanding definitions in child protection statutes argue that doing so is necessary to ensure that children at risk of harm from exposure to domestic violence are brought to the attention of child welfare agencies. They point to studies showing that between 45 percent and 70 percent of children exposed to domestic violence are themselves victims of physical abuse.5 In addition, children who witness domestic violence are at increased risk of experiencing negative consequences, including psychosomatic disorders, anxiety, fears, sleep disruption and depression.6 Proponents of expanded definitions of child maltreatment argue that child welfare agencies need to intervene early to prevent lasting damage to children in violent homes. They also argue that these laws encourage the child welfare and battered women's communities to begin working together to protect victims of domestic abuse.

Advocates for battered women and some child welfare professionals have advanced several arguments against this approach.

• Defining exposure to domestic violence as child maltreatment per se is inappropriate because it fails to account for protective factors, such as resilience, which mitigate harm to children. In addition, overly broad definitions may incorporate less serious behaviors that are unlikely to result in demonstrable harm to children, even in the absence of identifiable protective factors.

• These laws increase the likelihood that victims of domestic violence will be blamed for failing to protect their children and that children will be removed from home at the very time they are most in need of their mother's care and emotional support.

• These laws may discourage women from seeking protection from the police and/or the courts out of fear that they will lose custody of their children.

• Existing laws on emotional abuse and child endangerment are sufficient to protect children in violent households.

Another argument against this policy approach is that child welfare agencies simply do not have the resources to respond in any meaningful way to all incidents of domestic violence in the presence of a child. Every year, child welfare agencies across the country currently receive approximately 3 million reports of child abuse and neglect involving roughly 5 million children. Researchers estimate that the number of children exposed to domestic violence in the United States each year could be as high as 10 million. Some observers are concerned that a mandate to accept and investigate all reports of exposure to domestic violence would leave child welfare agencies with no resources to provide services. At least one state experienced significant increases in child abuse and neglect reports as a direct result of its expanded child abuse definitions. In 1999, Minnesota amended its definition of child neglect to include domestic violence "within sight or sound of the child."7 As a result of this change, county child welfare agencies in the state found themselves inundated with child neglect reports from police and court personnel. The Minnesota Association of County Social Service Administrators estimated that counties would need $30 million per year in additional resources to respond to these reports.8 In 2000, the Legislature repealed the amended definition.

Some states that require child welfare involvement in cases of children's exposure to domestic violence have taken steps to address some of the concerns raised by battered women's advocates. Utah adopted a policy to support the non-offending caregiver and to require that child protection workers take the following actions, among others, in child welfare cases involving domestic violence.

• Consult with a domestic violence professional to address the "specific domestic violence dynamics of the case and appropriate strategies."9

• Compile an inventory of resources available to the non-offending caregiver and her children.

• Assist the non-offending adult with a safety plan and with referrals to licensed shelters and/or domestic violence service providers.

Alaska took the following steps.

• Mandatory reporters of child abuse, including employees of domestic violence programs, are not required to report a child's exposure to domestic violence if the reporter has reasonable cause to believe that the child is safe and not in danger of mental injury.10 This provision is intended to reassure battered women that seeking help from law enforcement personnel or domestic violence programs will not automatically result in a child maltreatment report.

• Alaska law also requires the state child welfare agency to take "appropriate steps" to protect the child in cases involving domestic violence, including reasonable efforts to prevent removal of the child from the non-offending parent and reasonable efforts to remove the offender from the household.11

• Beginning in 1998, the Alaska Family Violence Prevention Project coordinated a series of 15 two-day, multi-disciplinary training sessions throughout the state for child protection workers, state troopers, domestic violence advocates, prosecutors and others to develop an integrated approach to child abuse and domestic violence. The workshops included discussion of how to implement the change in the definition of child maltreatment and were a critical first step in developing a coordinated community response to the problem of children's exposure to domestic violence.12

Alternative Policy Approaches

Many experts on domestic violence and child welfare maintain that keeping mothers safe is one of the most effective ways of protecting children from domestic violence. They encourage coordinated responses by child welfare agencies, courts, law enforcement personnel and domestic violence programs to support victims, hold batterers accountable and allow children to remain with their non-offending parents whenever possible. For example, the child welfare agency in Boston has established an internal domestic violence unit to provide case consultation, training and assessment services to child protective workers as well as direct services and advocacy for families. The child welfare agency and domestic violence community in Cedar Rapids, Iowa, also work in partnership to provide services to families in which domestic violence poses risks to child safety and well-being.13

Some observers also support authorization for a more service-oriented, less adversarial approach to reports of domestic violence in the presence of a child. During the past few years, many states have enacted "alternative response" statutes that allow child welfare agencies to respond in appropriate cases with a comprehensive family assessment, an offer of services and referral to community resources, rather than a narrow investigation of an alleged incident. In Minnesota, for example, the state Legislature authorized an alternative response pilot program in 1999.14 In Olmsted County, two-thirds of the child protection cases involving domestic violence are being offered voluntary services rather than the traditional investigation. The experience of other states with alternative response programs, however, indicates that engaging families in voluntary services remains a challenge.

Many observers also argue that there is a need for more voluntary, nonresidential, community-based services for children who are exposed to domestic violence. Although the number of battered women's shelters that offer services to children has increased during the past two decades, most children exposed to domestic violence do not go to shelters.15 A survey conducted in the mid-1990s revealed that only about half the community-based domestic violence providers offered services for children.16 Many of these providers do not have the staff or funds to meet the growing demand for children's services.

Issues for Legislators

Based on the experiences of Minnesota and Alaska, states that are considering expanding the definition of child maltreatment in their child protection laws to include exposure to family violence may want to consider the following issues.

• Whether their child welfare agencies have the capacity to respond to the increase in child abuse reports that will likely result from such a change. Child welfare agencies in many states are already overburdened and unable to respond to any but the most serious cases of child abuse and neglect.

• Whether child protection workers have the knowledge to assess risks to child safety and to intervene in ways that do not needlessly revictimize mothers and their children. Building this capacity likely will require, among other things, training in domestic violence issues and establishing partnerships with battered women's service providers and advocates, law enforcement agencies, courts and batterer intervention programs.

• Whether the statutory change under consideration clearly defines the circumstances under which mandatory reporters of child maltreatment must report children's exposure to domestic violence.

• Whether the change in statute will be accompanied by outreach and training to all agencies and individuals involved in the lives of battered women and their children, including law enforcement personnel, health and mental health providers, the substance abuse treatment community, judges and other court personnel, domestic violence advocates, prosecutors and, in many states, tribal representatives.

As more is learned about the effects of domestic violence on children, state policymakers will likely be called upon to do more to protect children in abusive households. Most experts agree that there are no easy answers to this troubling social problem. At the very least, the child welfare and domestic violence communities need to begin working together to protect both adult and child victims of family violence.

Notes

1. Ramona Foley, et al., Guidelines for Public Child Welfare Agencies Serving Children and Families Experiencing Domestic Violence (Washington, D.C.: National Association of Public Child Welfare Administrators, 2001).

2. Alaska Stat. Sec. 47.17.290 and 47.10.011(8).

3. Del. Code Ann. tit. 11, Sec. 1102(a)(4) (endangering the welfare of a child); Ga. Code Ann. Sec. 16-5-70(c) (cruelty to children in the second degree); Utah Code Ann. 76-5-109.1 (criminal child abuse).

4. Del. Code Ann. tit. 16, Sec. 906(b)(3).

5. John W. Fantuzzo and Wanda K. Mohr, Prevalence and Effects of Child Exposure to Domestic Violence, The Future of Children, Vol. 9, No. 3 (Los Altos, Calif.: The David and Lucile Packard Foundation, 1999), 21-32.

6. National Research Council and Institute of Medicine, From Neurons to Neighborhoods (Washington, D.C.: National Academy Press, 2000), 355.

7. 1999 Minn. Laws, Chap. 245, art. 8, Sec. 66.

8. Minnesota Association of County Social Service Administrators, "Preliminary Report: Co-occurring Spouse Abuse and Child Abuse, Domestic Violence Fiscal Note," January 2000.

9. Utah Division of Child and Family Services, Child Protective Services Policy, Sec. 204.5 (May 2001).

10. Alaska Stat. Sec. 47.17.020(h).

11. Alaska Stat. Sec, 47.17.035.

12. Linda Chamberlain, "Domestic Violence and Child Abuse: Ten Lessons Learned in Rural Alaska," Policy and Practice, March 2001, 32-38.

13. For more information on this subject, see National Council of Juvenile and Family Court Judges, Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice (Reno: NCJFCJ, 1998); Ramona Foley et al., Guidelines for Public Child Welfare Agencies Serving Children and Families Experiencing Domestic Violence (Washington, D.C.: National Association of Public Child Welfare Administrators, 2001).

14. 1999 Minn. Laws, Chap. 245, Art. 8, Sec. 65.

15. Amy Saathoff and Elizabeth Ann Stoffel, Community-Based Domestic Violence Services, The Future of Children, Vol. 9, No. 3 (Los Altos, Calif.: The David and Lucile Packard Foundation, 1999), 97-110.

16. Ibid.

STATE LEGISLATIVE REPORT is published 12 to 18 times a year. It is distributed without charge to legislative leaders, council and research directors, legislative librarians, and selected groups for each issue. For further information on STATE LEGISLATIVE REPORT or to obtain copies, contact the NCSL Book Order Department in Denver at (303) 830-2054.

© 2002 by the National Conference of State Legislatures

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