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Bar News - November 16, 2016

Family Law: Child Exposure to Domestic Violence: A Societal and Legal Problem


It has been called a national public health crisis and a hidden epidemic with silent victims. It is estimated to affect more than three million children every year; however, the full scope is difficult to accurately quantify, because this problem, by its very nature, is one that dwells in the shadows and thrives on secrecy.

It is childhood exposure to domestic violence, and its effects have proven to be more severe, more pervasive, and more long-lasting than was imagined even a decade ago. As with any issue related to child welfare, the problem of childhood exposure to domestic violence impacts our society as a whole and poses a number of legal implications that impact the practice of family law in particular – something which has become a topic of increased discussion in New Hampshire and nationwide in recent years.

Child exposure to domestic violence is defined as occurring when “domestic violence is committed in the presence of or perceived by the child,” causing the child to witness it in “an auditory, visual, or inferred” fashion, according to a 2013 article, “Child Witnesses to Domestic Violence,” published by the US Department of Health and Human Services, Children’s Bureau.

Increasingly, mental health practitioners and researchers have discovered that exposure to domestic violence, in and of itself – even absent direct physical abuse of the child – can cause severe emotional and psychological damage to children.

This issue was effectively catapulted into the consciousness of the medical and mental health community a little over 20 years ago by the groundbreaking CDC-Kaiser Adverse Childhood Experiences (or ACEs) study, the first public health study of its kind to examine the lifelong effects of childhood trauma, including exposure to domestic violence. In the years since the ACEs study launched in 1995, subsequent research has served to deepen our understanding of the severity of this problem, revealing that exposure to violence in the home affects the neurobiology of a developing brain, a result some experts call “the biologic embedding of stress,” according to “Silent Victims – an Epidemic of Childhood Exposure to Domestic Violence,” an article The New England Journal of Medicine published in 2012.

The traumatic effects of exposure to domestic violence radiate into multiple areas of a child’s life and development, and can emerge as anxiety, depression, PTSD, emotional and behavioral problems, and learning disabilities, as well as physical symptoms such as frequent headaches, stomach ailments, and even breathing difficulties like asthma. Over the past decade, a growing number of mental health experts have worked to raise awareness of and find solutions to the realities of domestic violence exposure and childhood trauma. Of particular note is the work of Dr. Bruce Perry and other researchers at the Child Trauma Academy, based in Houston, Texas. For legal practitioners wanting to delve further into this topic, the CTA’s website offers a helpful starting point.

State legislatures across the country have grappled with how and whether state laws and courts should address this societal issue, and their efforts have produced a range of different outcomes. Although a full survey of state laws on this topic is beyond the scope of this article, it is significant to note that at least six states specifically recognize the commission of domestic violence in the presence of a child as being either a separate crime of abuse per se or as a specific grounds for determining that a child is in need of services, and at least four states require perpetrators of domestic violence to pay for any counseling that exposed children may require.

Although New Hampshire law does not approach the question in as quite a head-on fashion, awareness of the child DV exposure epidemic – and tools for responding to it – are becoming part of our parenting and domestic violence statutes as well as state and DCYF protocols.

The NH Parental Rights and Responsibilities statute empowers the courts to consider the toxic effects of domestic violence on children. With regard to orders on decision-making responsibility, RSA 461-A:5 mandates that “where the court finds that abuse as defined in RSA 173-B:1(I) [i.e.: domestic violence] has occurred, the court shall consider such abuse as harmful to children and as evidence in determining whether joint decision-making responsibility is appropriate” (emphasis added). The statute further provides that the court’s orders in this area must be designed to “best protect the children or the abused spouse or both,” and that if the court opts to grant joint decision-making responsibility “despite evidence of abuse,” the court must support such an order with written findings.

Similarly, when determining parenting rights and responsibilities, one of the factors a court shall consider is any evidence of domestic violence as defined under RSA 173-B and its impact on the child and on the relationship between the child and the abusing parent, according to RSA 461-A:6 I (j).

When issuing domestic violence protective orders under 173-B, where the parties share minor children, courts in New Hampshire are statutorily allowed to include an order that grants sole custody to the abused party, requires that the abuser’s visitation be supervised at a visitation center, or even denies visitation to the abuser altogether. In making such determinations, the statute calls on the court to consider, amongst other factors, the degree to which visitation exposes the children to “physical or psychological harm.” Of course, 173-B protective orders are by their nature limited in time, and are not meant to supersede or take the place of parenting orders in a divorce or parenting matter.

Child protection cases under RSA 169-C are another area in which child domestic violence exposure intersects with the practice of family law. Although not specifically mentioned in the statute, exposure to adult domestic violence – even absent direct violence upon the child – can be the primary contributing factor for a petition based on neglect or emotional abuse. Such cases are rare, and generally involve adult domestic violence that either forms a chronic, ongoing pattern or has included a particularly significant or severe incident. (See DCYF Protocols on Domestic Violence and The Greenbook Court Guide for Co-Occurrence Cases.)

Meaningfully addressing the problem of childhood exposure to domestic violence is a complex undertaking, requiring collaboration across multiple disciplines and increased attention from society as a whole, but the role of the court system and legal community is an undeniably vital one. For the often “silent victims” of this epidemic, the legal system might provide their first chance at a voice.

Rebecca Rutter-Sanborn

Rebecca Rutter-Sanborn, a member of the NHBA since 2001, has a solo practice in Derry. Along with domestic violence issues, she also has a special interest in LGBT advocacy, and serves on the board of Seacoast Outright, which supports LGBT youth.

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