Battered Women and Child Custody Decisionmaking
![handle is hein.journals/hlr106 and id is 1615 raw text is: DEVELOPMENTS - DOMESTIC VIOLENCE
E. Conclusion
The best way to deal with the social problem presented by battered
women who kill is a preventive approach. Providing an integrated
system of more effective civil restraining orders, a greater number of
shelters and support services, more vigorous criminal prosecution of
batterers,57 and further legal and educational reforms'58 will result
in fewer abused women finding themselves in situations in which they
are forced to defend themselves against threats of death or serious
bodily harm from their abusers. When the legal system is forced to
deal with women who have killed their abusers, however, the solution
lies not in special treatment but merely in ensuring that existing
doctrines are fairly applied.
VI. BATTERED WOMEN AND CHILD CUSTODY DECISIONMAXING
A. Introduction
Child custody determinations attempt to create arrangements that
are in the best interest[s] of the child.' Historically, custody deci-
sionmakers considered the morality of parental conduct in fashioning
these arrangements.2 Courts and legislatures used cruelty, including
wife abuse,3 as a ground for denying custody to the abuser.4 As a
corollary to the movement towards no-fault divorce, however, modern
child custody law has de-emphasized the morality of the parents in
the best interests of the child standard.5 In applying this standard
157 See supra pp. '552-55.
158 See supra Part III.
1 Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on
Child Custody Decisions, 44 VAND. L. REV. 1041, 1042 (iggi). The best interests of the child
standard requires the judge to carefully examine the custody alternatives to determine which
parent is the superior custodian given the child's situation. See Friendly Parent Provisions in
Custody Determinations, WOMEN's ADvoc. (Nat'l Ctr. on Women and Family Law, New York,
N.Y.), Sept. 1992, at 1, 1-2 [hereinafter Friendly Parent].
2 See Cahn, supra note I, at 1043.
3 Wife abuse is a descriptive term that recognizes that women are the primary victims of
domestic violence. See U.S. COMM'N ON CIVIL RIGHTS, UNDER THE RULE OF THUMB: BAT-
TERED WOMEN AND THE ADMINISTRATION OF JUSTICE at iv-v (1982).
4 See Cahn, supra note i, at 1043; see, e.g., Hawkins v. Hawkins, 121 So. 92, 92 (Ala.
1929) ([T]he father has been adjudged guilty of cruelty to [the mother], and, while this fact is
not conclusive of his unfitness for the custody of the child, it is a circumstance to be considered
in passing upon the respective fitness of the parties.).
S See Carl E. Schneider, Moral Discourse and the Transformation of American Family Law,
83 MICH. L. REV. 1803, 1809-i (2985); cf. Carr v. Carr, 480 So.2d 1120, 1122 (Miss. 1985)
(In earlier decisions, custodial law was used to punish and penalize spouses guilty of marital
fault. The development of exceptions to the general rule evidenced a changing attitude. Gen-
1993]
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