Philip C. Crosby, Case Comment, Custody of Vaughan: Emphasizing the Importance of Domestic Violence in Child Custody Cases, 77 B.U. L. Rev. 483 (1997).

Introduction

 On May 7, 1996, the Supreme Judicial Court of Massachusetts decided Custody of Vaughn. [FN1] That case held that Massachusetts courts must consider the impact of domestic violence [FN2] in a child custody case and that findings of fact regarding the presence and impact of abuse must accompany any decision awarding custody to an abuser. [FN3] Vaughn expanded the limited statutory obligation to consider domestic violence in custody cases that the Massachusetts legislature had established in 1989. [FN4] Vaughn represents the nation's first judicially created requirement to consider family violence and provide specific findings about its impact on the children in all custody cases in which evidence of such violence exists. [FN5] The Vaughn court took a significant step toward addressing the complex and devastating problem of domestic violence and its effects on children.

 

Domestic violence represents one of the greatest threats to women in the United States. [FN6] Women are more likely to be assaulted and injured, raped, or killed by a current or ex partner than by all other types of assailants combined. [FN7] Each year in Massachusetts alone, approximately *484 190,000 women are physically abused by their partners. [FN8]

 

Domestic abuse represents a great physical and emotional threat to women and to their children. Children may be physically injured unintentionally during the physical attack on their parents, or they may be direct victims of violence themselves. [FN9] In addition, the trauma of witnessing domestic violence produces an array of emotional and psychological harms in children. [FN10] Children raised in violent homes may experience developmental problems and symptoms caused by post traumatic stress disorder. [FN11] Furthermore, children learn that violence is an acceptable part of relationships; therefore, they are likely to repeat the abuse in their own future relationships. [FN12]

 

Despite this evidence, courts have only recently begun to consider domestic violence as a factor in custody cases. [FN13] The Vaughn court recognized the impact of domestic violence on children and realized that that impact is often ignored. Vaughn takes a necessary step toward protecting the thousands of children exposed to domestic violence annually in Massachusetts. [FN14]

 

Part I of this Case Comment reviews Vaughn's factual background as well as the trial proceedings and subsequent Appeals Court and Supreme Judicial Court decisions. Part II discusses the impact of domestic violence on women. Part III outlines the detrimental impact on children who witness domestic abuse. Part IV analyzes the changes in Massachusetts law resulting from Vaughn, and Part V compares the new standards with other jurisdictions. This Comment concludes by encouraging other jurisdictions to follow Vaughn, and encouraging Massachusetts and other *485 jurisdictions to go even further than Vaughn by establishing a presumption against awarding custody to a batterer.

 

I. Custody of Vaughn

 

A. Case History

 

Shortly after Ross and Leslie [FN15] met in Maine in 1977, Ross moved into Leslie's home. [FN16] Leslie had been divorced twice and had two children of her own, Laura and John. [FN17] Leslie worked as a real estate salesperson and a cocktail waitress; Ross worked odd jobs as a carpenter and painter. [FN18] The parties lived together for over ten years "in a relationship that had all the characteristics of a marriage." [FN19]

 

The probate court found that Ross both physically and verbally abused Leslie during their relationship. [FN20] Ross had a terrible temper and testimony demonstrated that "he 'would fly into rages' and strike out at Leslie." [FN21] Leslie sought medical and police assistance on multiple occasions. [FN22] One particularly severe attack rendered Leslie unconscious. [FN23] Ross's verbal abuse also pervaded his relationship with Leslie. She testified that Ross "would threaten her, call her obscene names, ridicule her physical appearance, and make derogatory comments about her French Canadian heritage." [FN24]

 

Leslie and Ross both drank excessively and used marijuana in the early stages of their relationship; [FN25] this resembles many abusive relationships. [FN26] Yet, also resembling other abusive relationships, the violence continued even after they later took steps to curb their substance abuse. [FN27]

 

*486 Ross's violence continued after their son, Vaughn, was born in 1982. [FN28] The children witnessed many of the violent incidents, [FN29] and Leslie testified that on several occasions she fled the house with the children to escape Ross's rage. [FN30]

 

Beyond physical threats, Ross also played on Leslie's fears of losing Vaughn to control her. [FN31] Leslie testified that Ross often threatened to take Vaughn away in order to pressure her to remain in the relationship. [FN32] Ross testified that during arguments he sometimes took Vaughn from the house and would go to their "secret place" until the situation "would die down." [FN33]

 

Ross did not confine his rage to Leslie. As is typical of batterers, [FN34] Ross physically and verbally abused Leslie's children, Laura and John, and his own son, Vaughn. [FN35] Laura and John stated that they were terrified of Ross. [FN36] John testified that Ross would verbally abuse him, poke, kick, and slap him. [FN37] There is also testimony describing verbal abuse targeted at Vaughn, [FN38] as well as physical abuse including pushing, knocking, and poking Vaughn during fits of anger. [FN39]

 

Ross sexually abused the children as well. Laura testified that Ross would "kiss her with his tongue in her mouth . . . attempted to fondle [her] . . . and that he had walked about the house nude in her presence." [FN40] In addition, Ross undertook inappropriate activities with Vaughn. Ross showered with Vaughn and the two gave each other massages with scented oil. [FN41] When Leslie objected to these activities, Ross warned her to "stay out of it" because "[t]his is between my boy and myself." [FN42]

 

Ross was not the only instigator of abuse in the household. [FN43] "Leslie *487 [also] engaged in taunting, provocative, and violent behavior toward Ross." [FN44] The court focused in particular on two incidents. In 1986 Leslie entered Ross's room naked and "taunt[ed] him in the grossest and most explicit terms" within Vaughn's hearing. [FN45] In 1988, "Leslie, 'when rejected after demanding sexual favors from [Ross] followed him from the house to the public road. She was naked and directed foul language at him. This too was done in the presence of [Vaughn].' " [FN46]

 

The role each parent played in Vaughn's life changed as he grew. Leslie was Vaughn's primary caretaker until he was five years old. [FN47] Ross then began to assume additional responsibilities for the day-to-day care of Vaughn, and for the five years preceding the trial, Ross undertook household chores such as shopping and cooking. [FN48] Ross was very involved in Vaughn's academic and social activities, and seemed to spoil his son with expensive gifts. [FN49] The probate court found that Ross was more like a "friend and companion" to Vaughn and that Leslie was the disciplinarian. [FN50]

 

The pervasive tension and violence finally drove Leslie to seek a restraining order against Ross, which she received on October 1, 1992. [FN51] The order forced Ross to vacate and remain away from their home, to stay away from Leslie, and to surrender custody of Vaughn, then eleven years old. [FN52] In return, Ross initiated an action in probate court the next day to establish his paternity of Vaughn and to obtain custody. [FN53] Leslie and Ross promptly stipulated to a judgment of Ross's paternity and a temporary joint legal and physical custody order pending trial. [FN54]

 

*488 In 1993, the probate court awarded primary physical custody to Ross. [FN55] An appeal followed, culminating in the Supreme Judicial Court's mandate that the case be remanded to the probate court to consider the impact of domestic violence on Vaughn, and to support its custody decision in light of that violence. [FN56]

 

B. Trial and Appellate Proceedings

 

1. Pre-Trial Proceedings

 

The probate court entered a temporary joint custody order requiring Vaughn to live part of each week with each parent. [FN57] Shortly thereafter, Ross bought out Leslie's share of their house and the two agreed to live apart permanently. [FN58]

 

Both parties also agreed that Dr. Michael D. Abruzzese, whom the parents and Vaughn had previously consulted, [FN59] should be appointed guardian ad litem to evaluate and report on the well-being of their son. [FN60] In February of 1993, Dr. Abruzzese delivered his report, recommending that Vaughn's father have primary custody, and Vaughn spend only weekends with his mother. [FN61] Accordingly, the probate court maintained joint legal custody, but granted primary physical custody to Ross pending trial. [FN62]

 

2. Trial and Judgment in the Probate Court

 

After a three-day trial in July, 1993, the probate court entered a supplementary judgment preserving joint legal custody and primary physical custody with Ross. [FN63] The custody order also established visitation rights for Leslie [FN64] and ordered Leslie to pay $135 a week in child support to Ross. [FN65]

 

The probate court based most of its custody award upon Dr. Abruzzese's report and his trial testimony. Dr. Abruzzese testified that Vaughn and Ross had a very close relationship and that Vaughn "expressed a preference to live primarily with his father but not to the exclusion of *489 living with his mother." [FN66] Vaughn also told Dr. Abruzzese that although his father "would get angry, red in the face, and yell at [Vaughn]," Vaughn was no longer afraid of his father. [FN67] In addition, Dr. Abruzzese reported that Vaughn suffered from separation anxiety from Ross and that forcing the two to separate would result in "major psychological problems for both." [FN68] Finally, Dr. Abruzzese felt that denying Ross custody would create greater difficulties between Vaughn and his mother. [FN69]

 

Dr. Peter G. Jaffe, who testified as an expert witness for Leslie during the trial, believed that Ross's long-term abuse of Leslie had caused her to suffer from battered woman's syndrome. [FN70] Although Dr. Jaffe acknowledged that Leslie had used profanity and force against Ross, he categorized the majority of her physical acts against Ross as "defensive," especially considering Ross's much larger size. [FN71]

 

Dr. Jaffe also testified that Vaughn had suffered significantly from witnessing the violence in his family. [FN72] Vaughn believed that his separations from Ross made Ross unhappy, and Vaughn also felt that he could help his father to control his temper. [FN73] Dr. Jaffe believed that Vaughn had taken on "an excessive sense of responsibility for his father's well-being. He was speaking about his father as if he was looking after his father, *490 rather than his father looking after him." [FN74] Dr. Jaffe concluded that Vaughn suffered from the typical emotional and behavioral problems experienced by boys who witness their mothers' abuse, including depression, sadness, anxiety, and an excessive sense of personal responsibility for the batterer. [FN75]

 

Dr. Jaffe also testified that Vaughn had formed negative opinions of his mother as a result of watching his father abuse her. Vaughn thought that his motherwas fat, that she exaggerated a lot, and that she had a number of other problems. [FN76] Vaughn stated that he had derived these opinions from his father's statements to and about Leslie. [FN77]

 

Finally, Dr. Jaffe emphasized the tendency of children who witness abuse to become abusers themselves. "[Dr. Jaffe] expressed a concern that if [Vaughn] remained in his father's physical custody, it would reinforce the acceptability of the father's behavior . . . which has the potential to make [Vaughn] a batterer himself in the future." [FN78]

 

The probate court determined that both Ross and Leslie had been batterers and that Vaughn could be at risk with either parent. [FN79] Thus, the close relationship between Ross and Vaughn and the son's separation anxiety became the determining factor for the probate court's decision to place Vaughn in the primary physical custody of Ross. [FN80]

 

3. Appeals Court and Supreme Judicial Court Decisions

 

Following the probate court's decree, Leslie appealed the decision on several grounds. The appeals court determined that the probate court had failed to make adequate findings of fact regarding the violent history of Ross and Leslie's relationship and the impact of this abuse on Vaughn. [FN81] The appeals court thus reversed the probate court and remanded the case *491 for further consideration. [FN82] Ross then appealed for further review, and the Supreme Judicial Court upheld the appeals court's decision. [FN83]

 

The appeals court emphasized the importance of analyzing the risks of domestic violence, especially in light of the Gender Bias Study released by the Supreme Judicial Court in 1989. [FN84] Quoting that study, the appeals court explained that "appellate courts should make it clear that abuse of any family member affects other family members and must be considered in determining the best interests of the child in connection with any order concerning custody." [FN85] The appeals court found that an accurate determination of the best interest of Vaughn was impossible without a thorough finding regarding the impact of domestic violence on Vaughn. [FN86] Thus, the court held that:

[I]n cases where, as here, there is credible evidence of physical abuse to a household member by a person seeking custody of or visitation with a child, a trial judge must make detailed and precise findings of fact which demonstrate that the effects of the domestic violence on the child have been evaluated and, in the event physical or legal custody is awarded to the perpetrator of the abuse, how such an award advances the best interests of the child. [FN87]

 

The Supreme Judicial Court echoed many of the appeals court's concerns. Both appellate courts focused on the abusive relationship between Leslie and Ross and the impact of that relationship on Vaughn. [FN88] The Supreme Judicial Court further emphasized the evils of domestic violence throughout our society and the need for the judicial branch to address the issue.

 

Justice Fried, writing for a unanimous court, stated that family violence is "both intolerable and too readily tolerated," [FN89] and observed that:

Quite simply, abuse by a family member inflicted on those who are weaker and less able to defend themselves - almost invariably a child or a woman - is a violation of the most basic human right, the most *492 basic condition of civilized society: the right to live in physical security, free from the fear that brute force will determine the conditions of one's daily life. [FN90]

 

The court further noted that domestic violence "destroys the security that all should enjoy in the very place and context which is supposed to be the refuge against the harshness encountered in a world of strangers," [FN91] and that "[p]articularly for children the sense that the place which is supposed to be the place of security is the place of greatest danger is the ultimate denial that this is a world of justice and restraint, where people have rights and are entitled to respect." [FN92]

 

Finally, the court explained the essential need for the courts to address these issues in custody cases. [FN93] The court noted that "[d]omestic violence is an issue too fundamental and frequently recurring to be dealt with only by implication." [FN94] The court concluded that requiring "the courts to make explicit findings about the effect of the violence on the child and the appropriateness of the custody award in light of that effect will serve to keep these matters well in the foreground of the judges' thinking." [FN95]

 

II. Domestic Violence: The Male Batterer and Its Impact on Women

 

In order to appreciate the impact of domestic violence on children, it is necessary to understand the dynamics of an abusive relationship and its impact on the children's parents. Abusive relationships frequently exhibit common characteristics and behavior patterns, [FN96] many of which were *493 present in Ross and Leslie's relationship. This Part outlines the characteristics of "typical" relationships involving domestic violence.

 

A. Introduction to Domestic Violence

 

Research suggests that between two and four million women are battered in the United States annually by their husbands or partners. [FN97] Domestic violence affects families across all socio-economic strata, [FN98] and, although some men are abused, the violence is most often directed at women. [FN99] Furthermore, as demonstrated in Vaughn, the injuries inflicted by men are far more severe and the attacks more numerous than those inflicted by women. [FN100] Accordingly, the following discussion focuses on male battering of female partners.

 

Domestic violence ranges from verbal abuse coupled with sporadic acts of violence, to the most severe and methodical physical and emotional abuse. [FN101] More than one million women seek medical care for abuse-related injuries each year. [FN102] More than half of all female homicide victims are killed by their intimate male partners. [FN103]

 

*494 In Massachusetts, an estimated 190,000 women are physically abused by their partners each year. [FN104] In 1993, nearly 55,000 petitions for restraining orders were filed, almost exclusively by women, seeking protection from abuse by their intimate partners. [FN105] Despite the availability and use of these protective measures, a Massachusetts woman was killed by her abuser every nine days in 1995. [FN106]

 

B. A Relationship Involving Domestic Violence Is Controlled by Fear

 

Relationships involving domestic violence, although diverse and complex, share certain fundamental characteristics. [FN107] First, these relationships contain a repetitive and increasingly violent pattern of abuse as the male batterer attempts to dominate his partner with fear. [FN108] Second, the batterer is usually a man with low self-esteem who seeks to compensate by controlling and isolating his partner and family from social contacts. [FN109] Finally, the abuse frequently paralyzes the victim and traps her in the abusive relationship. [FN110]

 

1. The "Cycle of Violence"

 

An abusive relationship generally involves a continual state of intimidation and victimization of the woman, [FN111] and typically revolves around a repeated three-stage "Cycle of Violence." [FN112] The first phase is filled with increasing tension, anger, blaming, and arguing between the victim and *495 the batterer. The second phase is the actual abuse, and the third phase is the calm stage during which the perpetrator frequently repents, makes excuses, and promises not to repeat the violence. [FN113] The termination of one violent incident marks the beginning of the period of tension leading to the next assault. [FN114]

 

Physical abuse appears early in a relationship [FN115] and typically increases in severity and frequency. [FN116] In Vaughn, Leslie's many requests for police and medical assistance exemplify the typical pattern of repetitive abuse. [FN117] As time passes, the third stage of remorse becomes less pronounced as the abuser makes fewer efforts to apologize for or rationalize the abuse. [FN118] The truncation of the third stage provides less relief from the violence and increases the constant, day-to-day tension and anxiety for the victim. [FN119]

 

2. Male Batterers

 

Male batterers typically look to violence as a mechanism to exert control over their lives and overcome feelings of powerlessness and low self-esteem. [FN120] Batterers experience high levels of unhappiness and dissatisfaction within their lives, and exhibit personality traits such as dependence, depression, anxiety, paranoia, dissociation from their feelings, poor impulse control, antisocial tendencies, and hostility toward women. [FN121] Abuse arises as the men attempt to control their homes and families.*496

 

Substance abuse does not appear to be a cause of violence, [FN122] although high levels of drug and alcohol abuse exist among batterers. [FN123] Abusers use alcohol and drugs in order to excuse their behavior or avoid personal responsibility. [FN124] Thus, the deep insecurities of abusers, and not drugs, are the true causes of domestic violence. [FN125]

 

Because of their insecurities, batterers are very dependent on their partners and use violence to control and isolate them. [FN126] Violence increases dramatically when the victim attempts to leave the relationship [FN127] or when the man perceives the woman as having challenged his authority. [FN128] Times of stress and transition, such as pregnancy, childbirth, and parenting an adolescent, during which the batterer feels more insecure and threatened, lead to increases in abuse. [FN129]

 

In addition to using physical abuse as a control mechanism, batterers employ psychological weapons to isolate their partners and children from society. [FN130] The batterer's underlying motivation is both to exert control and avoid detection by discouraging the abused partner and the children from seeking assistance. [FN131] Batterers frequently monitor the victim's and children's social contacts and forbid or limit their participation in ordinary *497 peer activities. [FN132] In Vaughn, Ross demonstrated this type of behavior by attempting to involve himself in all of his son's activities. [FN133] This pattern of control and isolation perpetuates the abuser's psychological control over his victims.

 

In addition, many batterers threaten to commit suicide in order to coerce their partners into staying in the relationship. [FN134] Threats of suicide play on the victim's feelings of guilt by indicating that the physical well-being of the batterer hinges upon the continuation of the relationship. This heavy psychological burden counters the victim's strong desire to escape an abusive and isolating relationship.

 

3. Impact on Female Victims

 

Domestic violence inflicts numerous physical injuries on women in the United States who, combined, require nearly 100,000 days of hospitalization annually due to the violence. [FN135] Only about three percent of physically abused women, however, sustain injuries severe enough to require medical care. [FN136] Thus, statistics relying solely on medical reports do not incorporate over ninety-five percent of victims of domestic violence. [FN137] Beyond the acute injuries treated by emergency medical facilities, female victims may suffer from chronic headaches, abdominal pains, sexual dysfunction, recurrent vaginal infections, joint pains, and muscle aches. [FN138]

 

Female victims also experience emotional reactions similar to those experienced by victims of other types of trauma. [FN139] Emotional responses include shock, denial, withdrawal, confusion, psychological numbing, and fear. [FN140] Victims may exhibit long term psychological reactions, such as fear, anxiety, fatigue, sleeping and eating disorders, intense startle reactions, *498 and physical complaints. [FN141] Intimacy with the batterer exacerbates the trauma because the victim may love, trust, and depend on the perpetrator. [FN142] Victims who suffer injuries at the hands of an intimate partner may experience severe feelings of vulnerability, loss, betrayal, and hopelessness, [FN143] which often result in clinical depression. [FN144]

 

Victims of domestic violence often feel trapped in the abusive relationship due to their feelings of helplessness and isolation. [FN145] Although flight is the normal response to a threatening situation, women in violent homes have few options for seeking refuge. [FN146] Living in constant fear leads victims to experience a state of "learned helplessness" that arises from the inability to predict or control the violence. [FN147] Tormented by constant fear and intimidation, battered women may ultimately conclude that efforts to escape are futile. They focus instead on day to day survival and are unable to think clearly about means of escape from their abusive environment. [FN148]

 

III. The Impact of Domestic Violence on Children

 

Children are molded by their relationship with their parents and the environment in their home. As Dr. Peter Jaffe writes:

If [the parent-child] relationship is characterized by trust, reciprocity, consistency, and child-centered nurturing activities, the child's propensity to develop positive, desirable relations with peers and other adults is . . . greatly enhanced. Alternatively, an early parent-child relationship marked by fear, inconsistency, and unmet physical and psychological needs is associated with poor formation of peer relationships and a higher frequency of behavioral and emotional disorders. [*499 FN149]

 

Whereas strong, positive interactions between parents improve the home environment, [FN150] tension and abuse between parents may adversely affect children. [FN151] Expressions of anger between parents negatively affect children's emotions and behavior. [FN152]

 

Children who witness the abuse of their mother suffer severe emotional and developmental injuries. [FN153] Moreover, children in homes with inter-parental violence are frequently victims of direct physical abuse themselves. [FN154] In addition, because battering impairs the parenting skills of the abused mother, children often do not receive the proper care they need from either parent. [FN155] Ultimately, children in violent homes may view violence as an appropriate means of resolving conflict and as an integral aspect of a close relationship. [FN156]

 

A. Parents Often Disregard the Impact of Domestic Violence on Their Children

 

At least 3.3 million children witness domestic violence annually. [FN157] Reports by battered mothers indicate that eighty-seven percent of children in their families have witnessed the abuse. [FN158]

 

Despite evidence demonstrating that children witness most of the violence that occurs in their homes, parents tend to minimize or be entirely unaware of the harm the violence causes their children. [FN159] Parents often *500 believe that their children are unaware of violent incidents because they were "sleeping" or "in the next room with the television on." [FN160] Adults also assume that children will "forget" or will not understand the violence that they have witnessed. [FN161] Interviews with children, however, demonstrate that almost all can provide detailed accounts of the violent behavior. [FN162] Case studies demonstrate that children are able to recall traumatic events that occurred when they were as young as eighteen months of age. [FN163]

 

B. Children of Violent Homes Suffer Severe Emotional and Developmental Problems

 

Children of violent homes face many developmental hurdles. Dr. Judith Lewis Herman writes that "[the child] must find a way to preserve a sense of trust in people who are untrustworthy, safety in a situation that is unsafe, control in a situation that is terrifyingly unpredictable, power in a situation of helplessness." [FN164]

 

1. Isolation and Helplessness

 

Children in violent homes may initially attempt to protect themselves by either avoiding or placating the abuser. [FN165] Eventually, the batterer's violence, threats, and capricious enforcement of rules may coerce children into developing a habit of automatic obedience, and convince them of the futility of their resistance. [FN166] A batterer may even force his children to watch as he abuses their mother, so that the children might learn the consequences of disobedience. [FN167] A batterer's attempts to maintain secrecy also isolate the children and prevent them from forming social relationships. [FN168]

 

*501 Like their mothers, children's trauma from the violence may be manifested in feelings of helplessness. The arbitrariness and inconsistency of rule enforcement [FN169] and the unpredictability of the violence lead children to view the world as dangerous and uncertain and their own efforts to control their world totally ineffective. [FN170]

 

These feelings of helplessness and isolation may also have tangible physical and behavioral impacts on children. "The developing brain itself may be directly affected; changes in neurotransmitters, hormones, and regulation of the autonomic nervous system have been reported." [FN171] Additionally, domestic violence may affect children's views of their future. Some children come to believe that they will die at an early age. [FN172] This fatalistic outlook results in a decreased valuation of life, which leads to a higher incidence of suicide, [FN173] increased risk taking, [FN174] and lower concern for personal well-being [FN175] among children raised with domestic violence.

 

2. Self Blame

 

Traumatized by catastrophic events, people of all ages experience self blame as they search for faults in their own behavior in an effort to make sense out of what has happened to them. [FN176] This phenomenon is heightened among young children, who lack the cognitive maturity to understand that they are not a cause of the events surrounding them. [FN177] Self-blame generates additional stress for children and adds tension to an already volatile home life.

 

3. Constant Anxiety

 

"Children who witness violence are suffering an extreme form of psychological *502 and emotional abuse by the very fact that they are growing up in a war zone." [FN178] Anxiety derives from the acts of violence and from the burden of seeing a parent who is herself overwhelmed by the trauma of violence. [FN179] Children living with violence feel no safety in their own homes, and are too young to seek out or even want an alternative. [FN180] "Children typically turn to their parents for protection and security, but there is no comfort or security if one parent is the perpetrator of violence and the other a terrified victim." [FN181]

 

Adaptation to this climate of constant danger requires a state of acute alertness. [FN182] The children become trapped in a state of "frozen watchfulness." [FN183] The continuous anxiety associated with such constant alertness drains children's energy, leading to distraction and inattention to intellectual tasks in school, and persistent exhaustion. [FN184] This, however, is not the worst of these children's problems.

 

4. Post-Traumatic Stress Disorder

 

The trauma of witnessing domestic violence manifests itself in many ways. [FN185] Fifty percent of children exposed to trauma before the age of ten develop psychiatric problems later in life. [FN186] This statistic is troubling because studies have found that sixty-five percent of children who witness domestic violence are younger than nine years of age. [FN187]

 

Children exposed to domestic violence may also experience difficulty concentrating and sleeping, fear parental abandonment, and impose restrictive limits on their activities, thoughts, and explorations to avoid igniting the wrath of the abuser. [FN188] In addition, these children often act out *503 and exhibit aggressive behavior. [FN189] These symptoms may be severe enough to warrant the diagnosis "post-traumatic stress disorder" ("PTSD"). [FN190]

 

Three factors associated with domestic violence make post-traumatic stress disorder likely in children who observe parental abuse. First, a witness in close proximity to the violent act is more likely to suffer from PTSD. Second, a witness with a close relationship with the victim or the perpetrator is also more likely to suffer from PTSD. Finally, the risk of PTSD increases if the witness perceives himself or herself as vulnerable to injury. [FN191] Observing domestic abuse of a parent satisfies all three factors. Furthermore, evidence shows that children are more susceptible to PTSD than adults. [FN192]

 

C. Higher Rates of Child Abuse and Injury

 

In addition to its psychological effect on children, inter-parental abuse serves as an indicator of other types of abuse. In homes where domestic violence occurs, parents abuse and neglect their children at a rate fifteen times higher than the national average. [FN193] Studies have documented that between fifty-three and seventy percent of male batterers also abuse their children. [FN194] Furthermore, the more violent husbands are toward their wives, the more violent wives are toward their children. [FN195] In addition, the batterer may injure the children unintentionally during acts of domestic *504 violence perpetrated against his partner. [FN196] Older children may be injured while actively trying to protect the mother; [FN197] younger children and infants may be injured because they are unable to get out of the way of an assault directed at the mother. [FN198]

 

D. Inadequate Parental Care

 

Domestic violence undermines a victim-mother's effectiveness as a parent. Because women are the principal caretakers in the majority of homes, [FN199] children suffer as their mothers expend energy and resources coping with violent partners. Abuse creates dysfunction and disorganization, leaving children with little nurturance, support, structure, or supervision. [FN200] Moreover, "[p]arents who live in dangerous environments fear for their own safety and often feel powerless to protect their children." [FN201]

 

E. Repeating the Cycle of Violence

 

Children who witness domestic violence learn that violence is a normal part of an intimate relationship, [FN202] and that violence is an appropriate method of discharging tension and resolving conflicts. [FN203] They also learn that the violent abuser in the family often goes unpunished. [FN204] An adult *505 who witnessed domestic violence as a child is likely to use violence in his or her own adult life. [FN205] Moreover, children learn these lessons about violence along gender lines. [FN206] Boys are more likely to batter their partners when they grow up, and girls are more likely to become victims of abuse. [FN207]

 

Children in homes with domestic violence are also more likely than others to be aggressive with peers. [FN208] A 1985 Massachusetts Department of Youth Services study found that children raised in violent homes are twenty-four times more likely to commit sexual assault and are seventy-four percent more likely to commit crimes against the person. [FN209]

 

IV. Changes in Massachusetts Law Under Vaughn

 

A. Custody Order Requirements

 

Massachusetts courts apply the "best interest of the child" standard when making child custody determinations. [FN210] The statutory guidelines for custody orders that are issued as part of a divorce proceeding state that a court "may determine with which of the parents the children . . . shall remain or may award their custody to some third person if it seems expedient or for the benefit of the children." [FN211] The same standard applies *506 to orders for shared custody [FN212] or actions for annulment, [FN213] and to custody determinations in paternity suits, [FN214] as was the case in Custody of Vaughn. The "best interest" standard relies heavily on a trial court's discretion and provides significant latitude for judges when they make custody decisions. [FN215]

 

The Massachusetts legislature, however, has provided some specific direction for the courts beyond "the best interest of the child" standard. [FN216] The statutory guidelines outline factors that a court must consider when granting certain custody awards. [FN217] For example, when determining temporary shared legal custody, the court must consider "all relevant facts including but not limited to, whether any member of the family has been the perpetrator of domestic violence, abuses alcohol or drugs or has deserted the child, and whether the parties have a history of being able and willing to cooperate in matters concerning the child." [FN218] In addition, if a court has issued a restraining order against a parent in the past, the 1989 amendments to the child custody statute require written findings to support any shared legal or physical custody. [FN219]

 

Despite these guidelines, the statutory factors are imprecise and broad, leaving the final custody determination within the trial judge's discretion. [FN220] The judge may consider "the widest range of permissible evidence," including reports and testimony of a master or a guardian ad litem, history of the parents' relationship, evidence of each parent's home *507 environment, the overall fitness of each parent, and interviews with the child privately in chambers. [FN221]

 

B. Role of Domestic Violence in Custody Awards Prior to Vaughn

 

"At one time courts viewed domestic violence between parents as not particularly relevant to determining the best interests of the child as long as the violence was not directed at the child." [FN222] Prior to Vaughn, Massachusetts courts were not obligated to articulate the impact of domestic violence on families involved in custody disputes, unless the court's ruling came after the issuance of a restraining order against one parent. [FN223] Instead, courts could consider domestic violence as one factor within the traditional "best interests of the child" analysis, but were not required to consider evidence of an abusive home environment. [FN224] The 1989 Gender Bias Study criticized lower courts for awarding shared legal custody when evidence of spousal abuse existed. [FN225]

 

Historically, courts considered domestic violence a "family matter' to be 'worked out' by the parties involved." [FN226] Beginning in the late 1970s, however, Massachusetts began to protect victims of domestic violence. [FN227] The Massachusetts Abuse Prevention Act, commonly known as Chapter 209A, [FN228] represented a turning point for battered women and marked the beginning of increased attention to their plight. Chapter 209A created a *508 civil remedy allowing victims of domestic violence to obtain restraining orders protecting them from their abusers. [FN229]

 

In 1989, the Massachusetts legislature rewrote the child custody laws to require courts to consider domestic violence in certain custody cases. [FN230] For example, if a court had issued a restraining order against either parent, the new law required courts to consider domestic violence before making a temporary shared custody award or before making any permanent child custody decision. [FN231] In addition, the Supreme Judicial Court's Gender Bias Study pledged the court's assistance to victims of domestic violence, recommending changes to the implementation of current law in order "to ensure that victims are afforded the protection they deserve and that their needs are fulfilled in a sensitive and comprehensive manner." [FN232]

 

Vaughn represents the next logical step in Massachusetts' efforts to address the problem of domestic violence. Looking to the legislature's focus on family violence in Chapters 208 and 209, the court's decision exemplified its own commitment to making the judicial system more sympathetic to victims of domestic violence. [FN233] In mandating such consideration, the court closed a significant hole in the protection offered by the statute, which obligates courts to consider the impact of domestic violence only in select circumstances. [FN234] Vaughn now requires courts to consider family violence in custody cases whenever evidence of abuse arises. [FN235]

 

V. Comparison of Massachusetts with Other Jurisdictions

 

A. Requirement to Consider Domestic Violence in Custody Cases

 

Because state law controls child custody determinations, the role domestic violence plays in those decisions varies from state to state. A minority of states have no statutory guidelines mentioning the role of domestic violence in custody determinations, requiring only that courts apply the "best interest" standard with no additional specified criteria. [FN236] *509 Over eighty five percent of the states, however, require courts to consider the impact of domestic violence on children in custody cases. [FN237]

 

Approximately thirty nine states and the District of Columbia statutorily require courts to consider domestic violence. [FN238] The majority of states requiring the consideration of domestic violence do so as part of the "best interest" analysis. [FN239] In several states without specific legislative *510 mandates, courts have affirmed the relevance of domestic violence to the child custody determination. [FN240]

 

B. Massachusetts: The Only State to Mandate Findings by Judicial Decree

 

Several states statutorily mandate specific findings regarding domestic violence in custody cases. [FN241] For example, the Missouri "legislature stated that, if the trial court finds that any domestic violence occurred, . . . then the trial court shall make specific findings of fact to show that the custody or visitation arrangement ordered by the court best protects the child and the parent or other family . . . member from harm." [FN242] The District of Columbia also statutorily requires that "any determination that custody or visitation is to be granted to the abusive parent shall be supported by a written statement . . . specifying factors and findings which support that determination." [FN243]

 

Vaughn, however, represents a break from other jurisdictions, as the Supreme Judicial Court expanded the need for findings beyond the legislatively created standards. [FN244] The court looked to policy reasons to support its holding, and relied upon both its own and the legislature's past commitment to addressing domestic violence. [FN245] Thus, the court required written findings regarding domestic violence in every custody case in which there is evidence of such abuse.

 

C. Other Jurisdictions Establish a Presumption Against Custody for the Batterer

 

Whereas Massachusetts post-Vaughn requires findings of domestic violence, some jurisdictions have created rebuttable presumptions against custody awards for batterers when domestic violence is present. [FN246] This *511 automatic presumption represents an even more progressive approach to domestic violence than Massachusetts' current approach. States using this approach, however, are divided as to the level and proof of abuse required to generate the presumption. Some states require a criminal conviction before the rebuttable presumption arises. [FN247] Other states and the District of Columbia allow courts to weigh domestic violence as a factor based upon evidence presented during custody proceedings. [FN248] States also disagree as to whether the frequency of abuse affects the presumption. Some jurisdictions require a presumption only if the batterer is found to be "a habitual perpetrator of domestic violence," [FN249] but others require such a presumption regardless of the frequency or severity of abuse. [FN250]

 

VI. Recommendations

 

A. At a Minimum, Other Jurisdictions Should Embrace Fact Finding Requirements

 

Because domestic violence has significant adverse effects upon children, [FN251] requiring courts to consider the impact of domestic violence upon families is essential in order to guarantee that children are protected. Recognizing thesignificance of such violence, the American Bar Association *512 recommended that state legislatures require courts "to inquire into and carefully consider domestic violence in making child custody or visitation decisions." [FN252] The National Council of Juvenile & Family Court Judges also prioritized family violence in 1994, publishing model legislation that requires courts to "consider the perpetrator's history of physical harm, bodily injury, or assault, to another person." [FN253] State legislatures should embrace these recommendations and statutorily mandate findings of fact whenever evidence of domestic violence exists in a custody case.

 

If the legislatures are unwilling to act, however, state courts should join Massachusetts and judicially establish fact finding requirements. Judicial standards should ensure that domestic violence is fully considered during custody decisions. As Justice Fried noted in Vaughn, "[d]omestic violence is an issue too fundamental and frequently recurring to be dealt with only by implication," and a requirement for comprehensive findings "will serve to keep these matters well in the foreground of the judges' thinking." [FN254]

 

B. Massachusetts Should Create a Presumption Against Custody for Perpetrators of Domestic Violence

 

Vaughn's requirement of comprehensive findings regarding domestic abuse represents the most recent attempt by Massachusetts courts to address family violence. The Commonwealth should now take the next step and create a rebuttable presumption against awarding custody to batterers.

 

Support for such a presumption is broad. In 1990 the United States Congress unanimously recommended that "for purposes of determining child custody, credible evidence of physical abuse of one's spouse should create a statutory presumption that it is detrimental to the child to be placed in the custody of the abusive spouse." [FN255] Sharing the Congress's commitment to protecting battered women and their children, the American Bar Association has recommended that "custody not be awarded, in whole or in part, to a parent with a history of inflicting domestic violence." [FN256] The model legislation proposed by National Council of Juvenile & Family Court Judges also creates a presumption against custody awards for perpetrators of domestic violence. [FN257]

 

Such a change to strengthen the protection afforded battered women *513 and their children would not be difficult, as Massachusetts law already provides the foundation for such a presumption. The statutory guidelines for custody judgments during a divorce state that any custody award must be "for the benefit of the children." [FN258] Furthermore, "[w]hen considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health." [FN259] Children who witness domestic violence suffer many of the same injuries that victims of direct child abuse experience. Massachusetts courts have already held that perpetrators of significant child abuse should be denied custody. [FN260] Therefore, by drawing an analogy between the injuries caused by child abuse and those caused by witnessing domestic violence, courts can create a presumption against custody for batterers.

 

The obligation to consider the impact of living conditions on the physical and emotional health of children provides support for the creation of a presumption against granting custody to abusers. As outlined above, [FN261] witnessing domestic violence causes both physical and emotional injuries to children. Courts, therefore, should hold that this inherent incompatibility of domestic violence with the best interests of the child creates a presumption against awarding custody to the perpetrator of that violence.

 

Conclusion

 

Custody of Vaughn represents an important change in Massachusetts law, as the Supreme Judicial Court reemphasized the priority of domestic violence in child custody cases. Domestic violence has a severe impact on both immediate victims and the children who witness the abuse. Because domestic abuse affects every member of the household, Massachusetts courts must now provide comprehensive findings articulating the impact of family violence on a custody decision. [FN262]

 

Although this mandate represents a positive step toward protecting the welfare of children in custody proceedings, Massachusetts should go further to establish a presumption against custody for batterers. This presumption, coupled with the emphasis on abuse guaranteed by Vaughn, will help ensure that courts protect the victims of family violence. The injustice of domestic violence should not be exacerbated by placing children with abusers.

 

[FN1]. 664 N.E.2d 434 (Mass. 1996), aff'g R.H. v. B.F., 653 N.E.2d 195 (Mass. App. Ct. 1995).

 

[FN2]. "Domestic violence," as used in this Case Comment, refers to spousal or partner abuse, rather than child abuse.

 

[FN3]. See Vaughn, 664 N.E.2d at 440.

 

[FN4]. See Mass. Gen. Laws ch. 208, 31 (1994) (requiring courts to consider the issuance of a restraining order against either one of the parents in determining whether temporary shared legal custody would not be in the best interests of the child).

 

[FN5]. See infra notes 241-45 and accompanying text.

 

[FN6]. See Antonio C. Novello et al., From the Surgeon General, US Public Health Service, 267 JAMA 3132, 3132 (1992) ("Domestic violence is an extensive, pervading, and entrenched problem in the United States. It is an outrage to women and the entire American family.").

 

[FN7]. See Council on Scientific Affairs, Am. Med. Ass'n, Violence Against Women: Relevance for Medical Practitioners, 267 JAMA 3184, 3185 (1992).

 

[FN8]. See Susan Schechter & Lisa Klee Mihaly, Ending Violence Against Women and Children in Massachusetts Families 5 (1992) ("The problem is immense: approximately 190,000 women in the Commonwealth are beaten, terrorized, raped, slapped, pushed, or punched by their male partners every year ....").

 

[FN9]. See Howard Davidson, The Impact of Domestic Violence on Children, 1994 A.B.A. Ctr. on Children & L. 1, 1 2.

 

[FN10]. See id. at 1.

 

[FN11]. See infra note 190 and accompanying text.

 

[FN12]. See infra note 205 and accompanying text.

 

[FN13]. See 2A Charles P. Kindregan, Jr. & Monroe L. Inker, Massachusetts Practice 47.6 (2d ed. 1996); see also Davidson, supra note 9, at 6 (stating that "[d]omestic violence has a powerful, destructive impact on millions of children ... and the legal system [is] not doing enough to protect these children from the physical and psychological effects of seeing a parent battered").

 

[FN14]. Data collected from restraining order forms filed by women seeking court protection suggested that in 1994, 43,000 Massachusetts children were exposed to domestic violence; 65% of these children were eight or younger. See Betsy McAlister Groves, Children Without Refuge: Young Witnesses to Domestic Violence, Bulletin of Zero to Three (The Nat'l Ctr., Boston, Mass.), Apr./May 1996, at 29 (citing Massachusetts Department of Probation, 1995).

 

[FN15]. Ross and Leslie are Vaughn's parents. The courts used fictitious names.

 

[FN16]. See Custody of Vaughn, 664 N.E.2d 434, 436 (Mass. 1996).

 

[FN17]. See id.

 

[FN18]. See id.

 

[FN19]. R.H. v. B.F., 653 N.E.2d 195, 196 (Mass. App. Ct. 1995), aff'd sub nom. Custody of Vaughn, 664 N.E.2d 434 (Mass. 1996).

 

[FN20]. See Vaughn, 664 N.E.2d at 435. Ross was six feet, five inches tall and weighed approximately 285 pounds. See id. Leslie was five feet, seven inches tall and weighed approximately 150 pounds. See id. The court noted that the disparity in their size was relevant because the relationship was fraught with anger and violence from the start. See id.

 

[FN21]. Id.

 

[FN22]. See R.H., 653 N.E.2d at 197.

 

[FN23]. See Vaughn, 664 N.E.2d at 435.

 

[FN24]. R.H., 653 N.E.2d at 197.

 

[FN25]. See Vaughn, 664 N.E.2d at 435.

 

[FN26]. See Renata Vaselle Augenstein & Annette Ehrlich, Male Batterers: Evidence for Psychopathology, in Intimate Violence 139, 149 (Emilio C. Viano ed., 1992) (noting evidence of a high level of substance abuse in batterers).

 

[FN27]. See Vaughn, 664 N.E.2d at 435 (noting that Leslie joined Al Anon and Ross joined Alcoholics Anonymous).

 

[FN28]. See id. (adding that the police were called on approximately one dozen occasions).

 

[FN29]. See R.H., 653 N.E.2d at 197 98.

 

[FN30]. See Vaughn, 664 N.E.2d at 435.

 

[FN31]. Batterers often threaten to take the children or even harm them if the relationship ends. See Howard A. Davidson, Child Abuse and Domestic Violence: Legal Connections and Controversies, 29 Fam. L.Q. 357, 363 (1995).

 

[FN32]. See Vaughn, 664 N.E.2d at 435.

 

[FN33]. R.H., 653 N.E.2d at 197 98 n.1.

 

[FN34]. See infra Part III.C.

 

[FN35]. See Vaughn, 664 N.E.2d at 435.

 

[FN36]. See id.

 

[FN37]. See R.H., 653 N.E.2d at 198.

 

[FN38]. See id. at 199 (reporting Vaughn's statement to the guardian ad litem that Ross "would get angry, red in the face, and yell at him").

 

[FN39]. See Vaughn, 664 N.E.2d at 435.

 

[FN40]. R.H., 653 N.E.2d at 198.

 

[FN41]. See id.

 

[FN42]. Id.

 

[FN43]. See id. at 197 & n.1 (detailing instances of Leslie's unprovoked attacks on Ross). Typical of family violence, however, the injuries inflicted by Leslie were less severe and lacked the emotional terror of Ross's abuse. See infra notes 99 100 and accompanying text.

 

[FN44]. Vaughn, 664 N.E.2d at 435 36 (noting that Leslie assaulted Ross on several occasions "in a sexual and humiliating manner" and that she taunted him for sexually neglecting her). The appeals court noted that Leslie, "without provocation, would kick, knee, elbow, scratch, and bite [Ross]." R.H., 653 N.E.2d at 197.

 

[FN45]. Vaughn, 664 N.E.2d at 436.

 

[FN46]. Id. (quoting the probate judge). In an attempt to explain her actions, Leslie testified that she had run from the house in order to retrieve the keys from Ross's truck to prevent him from taking Vaughn away. See R.H., 653 N.E.2d at 197 98 n.1.

 

[FN47]. See Vaughn, 664 N.E.2d at 436.

 

[FN48]. See id. In fact, the probate court ruled that Ross was Vaughn's primary caretaker at the time of trial. See id. at 436 n.6.

 

[FN49]. See R.H., 653 N.E.2d at 198 99 (noting that the gifts included motor bikes, electronic equipment, and pellet guns).

 

[FN50]. See Vaughn, 664 N.E.2d at 436 n.6.

 

[FN51]. See id. at 436. Leslie obtained this order under Mass. Gen. Laws ch. 209A (1994). See infra notes 228 29 and accompanying text (explaining that chapter 209A provides victims of domestic violence with the civil remedy of a restraining order).

 

[FN52]. See Vaughn, 664 N.E.2d at 436.

 

[FN53]. See id.

 

[FN54]. See id.

 

[FN55]. See id.

 

[FN56]. See id. at 440.

 

[FN57]. See id. at 436.

 

[FN58]. See id.

 

[FN59]. Approximately three years before their separation, Leslie and Ross had taken Vaughn to Dr. Abruzzese for advice about Vaughn's difficulties in school. See id. at 439.

 

[FN60]. See id. at 436.

 

[FN61]. See id.

 

[FN62]. See id.

 

[FN63]. See id. at 436 37.

 

[FN64]. The court granted Leslie weekend, midweek, and holiday visitation rights. See id. at 437.

 

[FN65]. See id.

 

[FN66]. R.H. v. B.F., 653 N.E.2d 195, 199 (Mass. App. Ct. 1995), aff'd sub nom. Custody of Vaughn, 664 N.E.2d 434 (Mass. 1996).

 

[FN67]. See id.

 

[FN68]. Id. Leslie's expert witness, however, did not agree that Vaughn would likely suffer from separation anxiety if removed from Ross's custody. See id. at 200.

 

[FN69]. See id. at 199.

 

[FN70]. See id. at 200. Battered woman's syndrome is a "series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives." Id. at 200 n.6 (citing State v. Kelly, 478 A.2d 364, 372 (N.J. 1984)). These characteristics include low self esteem, an emotional dependence upon the male batterer, and the psychological condition termed "learned helplessness," that arises from the women's inability to predict or control the violence directed toward her. See id. Numbed by the constant fear of aggression and punishment, women tormented by "learned helplessness" cannot think clearly about means of escaping from their abusive environment. See id. Finally, women with battered woman's syndrome often become trapped by their own fear of the possible violent response that their efforts to leave might provoke in their abusers; consequently, these women may lose all hope of leaving the abusive relationships. See Kelly, 478 A.2d at 372.

 

[FN71]. See R.H., 653 N.E.2d at 200. Dr Jaffe testified that "in situations where there's family violence ... women quite often will go to extreme measures to defend themselves," especially where, as here, the man is much larger. See id.

 

[FN72]. See id.

 

[FN73]. Statements like these, along with diagnoses of separation anxiety, and Ross's extensive involvement in Vaughn's social activities, illustrate that Ross employed the same system of coercive use of guilt and control with Vaughn as batterers often do with their partners and family. See supra notes 130 34 and accompanying text.

 

[FN74]. R.H., 653 N.E.2d at 200.

 

[FN75]. See id. Vaughn's excessive sense of responsibility for his father resembles the self blame many children experience regarding the violence in their home. See infra Part III.B.2.

 

[FN76]. See R.H., 653 N.E.2d at 200.

 

[FN77]. See id.

 

[FN78]. Custody of Vaughn, 664 N.E.2d 434, 438 (Mass. 1996) (quoting the probate judge).

 

[FN79]. See R.H., 653 N.E.2d at 199.

 

[FN80]. See id. (noting the trial judge's explanation that although much of Ross's conduct and treatment of Vaughn may be questionable, "the father and son have clearly developed a special relationship. The evidence does not reflect that ... [Vaughn] has been hurt by this relationship. To the contrary it establishes the very strong bond between father and son").

 

[FN81]. See id. at 202. Although the probate court found that both parents were abusive and that both parents therefore posed a risk to Vaughn, the court failed to explain or explore the degree and nature of the risk each posed to Vaughn. See id. ("A subject of such gravity calls for a more detailed exploration and analysis of the evidence and an explication of the degree and nature of the respective risks to the child.").

 

[FN82]. See id. at 203.

 

[FN83]. See Vaughn, 664 N.E.2d at 435.

 

[FN84]. Report of the Gender Bias Study of the Supreme Judicial Court 160 (1989) [hereinafter Gender Bias Study].

 

[FN85]. R.H., 653 N.E.2d at 202.

 

[FN86]. See id. at 203. The appeals court ruled that because Dr. Abruzzese did not evaluate the significance of domestic violence and its impact on Vaughn in recommending that the court should award Ross primary physical custody, his opinion offered little basis for the trial judge's determination. See id. Furthermore, the appeals court ruled that the trial court should not have afforded substantial weight to Ross's role as primary caretaker over the past five or six years without a determination as to the quality of that care. See id.

 

[FN87]. Id. at 202.

 

[FN88]. See Vaughn, 664 N.E.2d at 439 40; R.H., 653 N.E.2d at 201 03.

 

[FN89]. Vaughn, 664 N.E.2d at 437.

 

[FN90]. Id. (emphases added).

 

[FN91]. Id.

 

[FN92]. Id.

 

[FN93]. See id. at 437 38. The court, citing the Gender Bias Study, stated:

[O]ur courts have too often failed to appreciate the fundamental wrong and the depth of the injury inflicted by family violence. In subtle and overt ways the decisions of courts fail to take these factors into account and have treated them with insufficient seriousness in making dispositions, particularly in cases involving custody of children and the realignment of family relationships in divorce and related proceedings.

Id.

 

[FN94]. Id. at 439. Furthermore, "[t]he very frequency of domestic violence in disputes about child custody may have the effect of inuring courts to it and thus minimizing its significance." Id. at 439 40.

 

[FN95]. Id. at 440. In this case, the trial judge never addressed the impact on Vaughn of witnessing Ross's violent behavior toward the mother, nor did it consider the special risks to Vaughn in awarding custody to a father who had repeatedly committed violent acts against the mother. See id. at 439.

 

[FN96]. See Peter G. Jaffe et al., Children of Battered Women 22 31 (1990) (describing the results of studies profiling the psychology of battered women, male batterers, and their children).

 

[FN97]. See Hearings on Fiscal Year 1996 Appropriations, Before the Subcomm. on Labor, Health and Human Servs., and Educ. of the House Appropriations Comm., 104th Cong. (1995) (testimony of Rep. Lucille Roybal Allard); Council on Scientific Affairs, supra note 7, at 3185 (noting that due to serious problems of underreporting, the number is probably closer to four million); Nancy E. Isaac et al., Men Who Batter: Profile from a Restraining Order Database, 3 Arch. Fam. Med. 50, 50 (1994). Domestic violence is one of the most underreported crimes, and estimates may therefore be conservative. See Teri Randall, Domestic Violence Begets Other Problems of Which Physicians Must Be Aware to Be Effective, 264 JAMA 940, 940 (1990) (listing reasons for underreporting).

 

[FN98]. See Edward W. Gondolf, Psychiatric Response to Family Violence 65 (1990) (charting perpetrators of violence along gender, racial, and economic lines).

 

[FN99]. See Barry Zuckerman et al., Silent Victims Revisited: The Special Case of Domestic Violence, 96 Pediatrics 511, 512 (1995) (stating that 95% of domestic violence victims are women).

 

[FN100]. See Council on Scientific Affairs, supra note 7, at 3185 86 (comparing the extent and degree of attacks by male and female batterers and finding that men batter more often and more severely than women). It appears that Ross never required medical attention for any of his injuries because both the appeals court and the Supreme Judicial Court failed to disclose any such occurrence.

 

[FN101]. See Komanduri S. Murty & Julian B. Roebuck, An Analysis of Crisis Calls by Battered Women in the City of Atlanta, in Intimate Violence, supra note 26, at 61, 67 (detailing the range of injuries associated with assaults reported during calls to the Atlanta Council of Battered Women); see also Gondolf, supra note 98, at 79 (stating that assaults range from slapping to threats with and use of a weapon).

 

[FN102]. See Isaac et al., supra note 97, at 50; see also Randall, supra note 97, at 943 (citing survey results indicating that domestic violence annually causes 21,000 hospitalizations, 99,800 days of hospitalization, 28,700 emergency room visits, and 39,900 visits to physicians).

 

[FN103]. See Council on Scientific Affairs, supra note 7, at 3186; Isaac et al., supra note 97, at 50. Although domestic violence legislation and battered women's services are credited with a more than 25% reduction in homicides by women of their male partners between 1976 and 1984, there was no similar decline in the number of homicides by men of their female partners. See Council on Scientific Affairs, supra note 7, at 3186.

 

[FN104]. See Schechter & Mihaly, supra note 8, at 5 (adding that existing services for battered women reach only 18,000 women a year).

 

[FN105]. See Administrative Office of the Trial Court, Annual Statistical Report of the Trial Court 19, 62 (1993).

 

[FN106]. See Women, Children and Men Killed as a Result of Domestic Violence, Domestic Violence Homicide Record (Mass. Coalition of Battered Groups Women Servs., Boston, Mass.), Dec. 31, 1996.

 

[FN107]. See Jaffe et al., supra note 96, at 22 31.

 

[FN108]. See infra Part II.B.1.

 

[FN109]. See infra Part II.B.2.

 

[FN110]. See infra Part II.B.3.

 

[FN111]. See Justice Research & Stat. Ass'n, Domestic and Sexual Violence Data Collection 21 (1996).

 

[FN112]. See Evan Stark, Framing and Reframing Battered Women, in Domestic Violence 271, 279 (Eve S. Buzawa & Carl G. Buzawa eds., 1992) (citing the "Battered Women's Syndrome" developed by psychologist Lenore Walker based upon her observations of and interviews with female victims of domestic violence); see also Massachusetts Office for Victim Assistance, Training Manual for Safe Plan Massachusetts Advocates 1c, 3 (1996); Clare F. Carroll, Domestic Violence and Its Impact on Child Custody and Visitation Determinations, 11 Mass. Fam. L.J. 89, 90 (1994).

 

[FN113]. See Massachusetts Office for Victim Assistance, supra note 112, at 1c, 3.

 

[FN114]. See R. Emerson Dobash & Russell Dobash, Violence Against Wives 97 (1979).

 

[FN115]. See id. at 94 (citing a study finding that 90% of domestic violence victims were beaten in their first year of marriage).

 

[FN116]. See Susan Guarino, Massachusetts Dep't of Youth Servs., Delinquent Youth and Family Violence 16 (1995); Novello et al., supra note 6, at 3132.

 

[FN117]. See Glenn L. Pierce & Susan Spaar, Identifying Households at Risk of Domestic Violence, in Domestic Violence, supra note 112, at 59, 68 (providing statistics for domestic violence related requests for police service). Homes with severely violent families typically experience five major assaults every year. See Introduction: Some Fundamental Issues, in Abused and Battered xi, xii (Dean D. Knudsen & JoAnn L. Miller eds., 1991).

 

[FN118]. See Dobash & Dobash, supra note 114, at 124 25; see also Stark, supra note 112, at 279 (stating that the cycle gives women false hope the relationship will improve, though, over time, as the cycle shortens or the period of contrition disappears, this hope may fade).

 

[FN119]. See Stark, supra note 112, at 279 (suggesting that the false hope that a batterer's remorse provides for victims of domestic violence fades as the apologies lessen or disappear).

 

[FN120]. See Vaselle Augenstein & Ehrlich, supra note 26, at 143.

 

[FN121]. See id. at 139. Ross sought psychiatric help as a result of his severe mood swings, and a psychiatrist diagnosed Ross as manic depressive. See R.H. v. B.F., 653 N.E.2d 195, 198 (Mass. App. Ct. 1995), aff'd sub nom. Custody of Vaughn, 664 N.E.2d 434 (Mass. 1996).

 

[FN122]. See Vaselle Augenstein & Ehrlich, supra note 26, at 149.

 

[FN123]. In Vaughn, the court noted that both Ross and Leslie drank heavily and used marijuana. See Custody of Vaughn, 664 N.E.2d 434, 435 (Mass. 1996).

 

[FN124]. See Vaselle Augenstein & Ehrlich, supra note 26, at 149.

 

[FN125]. See, e.g., Vaughn, 664 N.E.2d at 435 36 (noting that even after Ross stopped drinking, the abuse continued).

 

[FN126]. See Jaffe et al., supra note 96, at 26 (stating that male batterers are jealous of their partners' outside activities and constantly worry that their partners will lose their "prisoner status"); see also Dobash & Dobash, supra note 114, at 21 (stating that within a family, physical force is a means of control and is usually used by the father or husband).

 

[FN127]. See Vaselle Augenstein & Ehrlich, supra note 26, at 140 41 (describing the batterers' "abandonment anxiety").

 

[FN128]. See id. at 142 (explaining the batterers' excessive need to be in control).

 

[FN129]. See Jaffe et al., supra note 96, at 22 (citing research suggesting that wife battering is associated with parenting in the early childhood years and the teenage years); see also Council on Scientific Affairs, supra note 7, at 3187 ("Approximately 37% of obstetric patients, across class, race, and educational lines, are physically abused while pregnant.").

 

[FN130]. See Joyce McCarl Nielsen et al., Social Isolation and Wife Abuse: A Research Report, in Intimate Violence, supra note 26, at 49 (studying the relation between social isolation and wife abuse).

 

[FN131]. See Jaffe et al., supra note 96, at 26 (linking the isolation of the family with the batterer'sfear of detection or outsider involvement); see also Stark, supra note 112, at 282 83 (describing the isolation of the victim as a form of entrapment).

 

[FN132]. See Judith Lewis Herman, Trauma and Recovery 100 (1992) (describing the pattern and effects of enforced isolation).

 

[FN133]. See Custody of Vaughn, 664 N.E.2d 434, 436 (Mass. 1996) ("[Ross] was greatly occupied with his son's activities.... Indeed the evidence suggests that Ross was, if anything, overly involved with his son.").

 

[FN134]. See Vaselle Augenstein & Ehrlich, supra note 26, at 141 (citing a study finding that 71% of batterers had threatened suicide if his partner left).

 

[FN135]. See Randall, supra note 97, at 943 (stating that domestic violence annually results in 21,000 hospitalizations, 99,800 days of hospitalization, 28,700 emergency room visits, and 39,900 visits to physicians). Annual medical costs incurred because of family violence total approximately $44 million each year. See id. In addition, society annually absorbs the indirect cost of lost productivity resulting from women missing 175,000 work days due to injuries sustained from domestic violence. See id.

 

[FN136]. See Murray A. Straus, Physical Violence in American Families: Incidence Rates, Causes, and Trends, in Abused and Battered, supra note 117, at 17, 19.

 

[FN137]. See id.

 

[FN138]. See Randall, supra note 97, at 943.

 

[FN139]. See Council on Scientific Affairs, supra note 7, at 3186.

 

[FN140]. See id. (reporting that, during or after an assault, a victim may offer little or no resistance).

 

[FN141]. See id. In Vaughn, Leslie suffered psychological effects of victimization. She was in therapy when the appeals court decision was written and was "working to regain her self esteem and confidence." R.H. v. B.F., 653 N.E.2d 195, 198 (Mass. App. Ct. 1995), aff'd sub nom. Custody of Vaughn, 664 N.E.2d 434 (Mass. 1996).

 

[FN142]. See Council on Scientific Affairs, supra note 7, at 3186 (noting that a major difference between victims of strangers and victims of marital abuse is that the former do not have legal, financial, and role relationships with their assailants).

 

[FN143]. See id.

 

[FN144]. See id. Approximately 33% of women in abusive relationships suffer from primary care depression. See Randall, supra note 97, at 943 (adding that suicide attempts are common among victims of domestic violence, and that over 25% of all women who attempt suicide are victims of domestic violence).

 

[FN145]. See Stark, supra note 112, at 282 (noting that victims' use of defensive mechanisms such as minimization or numbing compromise their ability to seek outside help).

 

[FN146]. See Dobash & Dobash, supra note 114, at 103.

 

[FN147]. See Stark, supra note 112, at 278 79 (explaining that the cumulative effects of violence lead victims to respond passively).

 

[FN148]. See id. at 279.

 

[FN149]. Jaffe et al., supra note 96, at 38.

 

[FN150]. See id.

 

[FN151]. See Betsy McAlister Groves et al., Silent Victims: Children Who Witness Violence, 269 JAMA 262, 262 (1993) (explaining the negative effect domestic violence has on children's development).

 

[FN152]. See Zuckerman et al., supra note 99, at 511; see also Groves et al., supra note 151, at 262 (asserting that children who witness domestic violence may be particularly vulnerable to emotional and developmental problems).

 

[FN153]. See infra Part III.B.

 

[FN154]. See infra Part III.C.

 

[FN155]. See infra Part III.D.

 

[FN156]. See infra Part III.E.

 

[FN157]. See Groves et al., supra note 151, at 262; see also Hearings on Fiscal Year 1996 Appropriations, Before the Subcomm. on Labor, Health and Human Services, and Educ. of the House Appropriations Comm., 104th Cong. (1995) (testimony of Rep. Lucille Roybal Allard). In reality, the number of children who witness domestic violence may be closer to 10 million because domestic violence is severely underreported. See Laurie Petrie, Witnesses Share Bruises, Cincinnati Post, Apr. 29, 1995, at 1A; see also Marilyn Augustyn et al., Silent Victims: Children Who Witness Violence, 12 Contemp. Pediatrics 35, 36 (1995) (citing a study showing that more than 10 million American children per year witness a physical assault between their parents).

 

[FN158]. See Petrie, supra note 157, at 1A.

 

[FN159]. See id; see also Zuckerman et al., supra note 99, at 512 (contrasting this view with children's "painfully vivid" accounts of abuse in their homes).

 

[FN160]. Groves, supra note 14, at 30; see also Jaffe et al., supra note 96, at 21 (citing studies that estimate children's exposure to domestic violence).

 

[FN161]. See Laura Taylor et al., Witnessing Violence by Young Children and Their Mothers, 15 J. Dev. & Behav. Pediatrics 120, 120 (1994).

 

[FN162]. See Jaffe et al., supra note 96, at 21 (asserting that "[e]xtreme events will stay with [children] for a lifetime and may be relived through subsequent court hearings").

 

[FN163]. See Augustyn et al., supra note 157, at 49; see also Groves, supra note 14, at 32 34 (describing the vivid memories of violence witnessed by Julie, a three year old, that occurred before she was two).

 

[FN164]. Herman, supra note 132, at 96. A child trapped in an abusive home is faced with formidable tasks of adaptation. Although "[r]epeated trauma in adult life erodes the structure of the personality already formed, ... repeated trauma in childhood forms and deforms the personality." Id.

 

[FN165]. See id. at 100 (reporting that runaway attempts are common, often beginning at age seven or eight).

 

[FN166]. See id.

 

[FN167]. See Jaffe et al., supra note 96, at 26.

 

[FN168]. See Herman, supra note 132, at 100. Isolation of children is very similar to the "entrapment" that the female victim suffers. See Stark, supra note 112, at 282 83; see also supra notes 130 33 and accompanying text.

 

[FN169]. See Herman, supra note 132, at 100.

 

[FN170]. See Betsy McAlister Groves, How Does Exposure to Violence Affect Very Young Children?, Harv. Mental Health Letter (Harvard Med. Sch., Boston, Mass.), Jan. 1995, at 8.

 

[FN171]. Id.

 

[FN172]. See Augustyn et al., supra note 157, at 41.

 

[FN173]. See Guarino, supra note 116, at 18 (finding that children raised in violent homes are six times more likely to attempt suicide than children in non violent homes).

 

[FN174]. See Augustyn et al., supra note 157, at 41 (asserting that children from violent homes tend to drink, carry weapons, and take more personal risks than other children).

 

[FN175]. See Guarino, supra note 116, at 18 (noting that children from violent homes are 50% more likely to use drugs and alcohol than other children).

 

[FN176]. See Herman, supra note 132, at 103.

 

[FN177]. See id. (stating that self blame is typical of early childhood thought processes "in which the self is taken as the reference point for all events"); see also Groves, supra note 14, at 30.

 

[FN178]. Petrie, supra note 157, at 1A (quoting Dr. Peter Jaffe, director of the Family Court Clinic in London, Ontario).

 

[FN179]. See Groves et al., supra note 151, at 262 (stating that "[w] itnessing relatives ... being hurt ... is especially stressful for young children who are already struggling with developmentally appropriate concerns about safety, competence, and bodily integrity").

 

[FN180]. See Jaffe et al., supra note 96, at 28.

 

[FN181]. Augustyn et al., supra note 157, at 39; see also Groves et al., supra note 151, at 262 (stating that the "calm, reassuring voice of the parent has little currency or is absent when parents themselves are frightened and insecure").

 

[FN182]. See Herman, supra note 132, at 99 (explaining that children in an abusive environment develop extraordinary abilities to scan for warning signs of attack).

 

[FN183]. See id. at 100.

 

[FN184]. See Jaffe et al., supra note 96, at 28.

 

[FN185]. See Augustyn et al., supra note 157, at 50.

 

[FN186]. See Taylor et al., supra note 161, at 120.

 

[FN187]. See Groves, supra note 14, at 29.

 

[FN188]. See Groves et al., supra note 151, at 262 (discussing the behavioral and psychiatric effects of witnessing domestic violence).

 

[FN189]. See id. (noting that witnessing domestic abuse may lead children to engage in increased risk taking behavior).

 

[FN190]. See id. (explaining that symptoms of PTSD include a diminished ability to concentrate in school, persistent sleep disturbances, flashbacks, disordered attachment behaviors with significant caretakers, sudden startling and hyper vigilance, and a nihilistic, fatalistic orientation to the future).

 

[FN191]. See Groves, supra note 14, at 30; Groves et al., supra note 151, at 262.

 

[FN192]. See Augustyn et al., supra note 157, at 41 (stating that the risk that a child less than 11 years old will develop PTSD is three times greater than the risk that an adult will develop the disorder).

 

[FN193]. See Groves, supra note 14, at 30 (finding that in approximately 60 to 75% of families in which a woman is battered, children are also battered); see also Davidson, supra note 31, at 357 (finding that in homes with severe domestic violence, 77% of the children were also abused).

 

[FN194]. See, e.g., Schechter & Mihaly, supra note 8, at 12; Carroll, supra note 112, at 93; Davidson, supra note 31, at 357 58. Even if batterers do not physically abuse their children, they typically possess poor parenting skills that often result in distance from and uneasiness with their children. See Carroll, supra note 112, at 94.

 

[FN195]. See Guarino, supra note 116, at 16; see also Davidson, supra note 31, at 359 (stating that some parents who are the victims of abuse are also the perpetrators of abuse upon their children). This "derivative violence" appears to be directly linked to the abuse of the mother by her partner. See Guarino, supra note 116, at 16. Although 28% of battered mothers reported abusing a child, the abuse drops markedly after the mothers leave their batterers. See Schechter & Mihaly, supra note 8, at 12 (noting that mothers abuse their children eight times more frequently while she is living with the batterer than after she left or the batterer left the home).

 

[FN196]. See Groves, supra note 14, at 30.

 

[FN197]. See Davidson, supra note 31, at 358 (discussing injuries to children who attempt to intervene on the victim's behalf).

 

[FN198]. See Jaffe et al., supra note 96, at 27 (discussing injuries to children who are "caught in the cross fire").

 

[FN199]. See Gender Bias Study, supra note 84, at 61 (finding that mothers are most often primary caretakers even when they work outside the home).

 

[FN200]. See Jaffe et al., supra note 96, at 23; see also Groves, supra note 170, at 8 ("Parents who are chronically fearful or who have themselves been exposed to trauma may find it difficult to remain sensitive to their children's feelings. They may be so depressed or grief stricken that they can do little to satisfy the child's increased need for comfort, reassurance, and protection."). A victim may be incapable of attending to her children's needs because of the abuse she suffers. See Zuckerman et al., supra note 99, at 512.

 

[FN201]. Augustyn et al., supra note 157, at 50.

 

[FN202]. See Dobash & Dobash, supra note 114, at 152 (noting, however, that it "would be an erroneous leap to the conclusion that all children who witness assaults on their mother or other forms of violence between family members are necessarily the seed pods of the next generation of violent families").

 

[FN203]. See Augustyn et al., supra note 157, at 39 (citing a study at Johns Hopkins Hospital that showed that nearly 40% of the mothers attending a clinic at the inner city hospital reported that violence was a way of settling disagreements in their families).

 

[FN204]. Dr. Peter G. Jaffe, testifying for Leslie, expressed his belief that awarding Ross custody of Vaughn would condone the violence committed by Ross. See R.H. v. B.F., 653N.E.2d 195, 201 (Mass. App. Ct. 1995), aff'd sub nom. Custody of Vaughn, 664 N.E.2d 434 (Mass. 1996).

 

[FN205]. See Davidson, supra note 31, at 369 (stating that children who witnessed domestic violence "tend to be more aggressive and punitive toward their own children or to be violent and demonstrate a general disregard for the rights and welfare of others").

 

[FN206]. See Groves et al., supra note 151, at 262.

 

[FN207]. See Augustyn et al., supra note 157, at 41; Davidson, supra note 31, at 369. In fact, a son who witnesses abuse of his mother is more likely to become a batterer than one whose father beats him. See Carroll, supra note 112, at 92. In Vaughn, Leslie's expert witness stated that "80 percent of all men who batter their partners have witnessed violence in their family of origin." R.H., 653 N.E.2d at 201. Furthermore, in a "fifteen year study of divorcing families in which violence was a factor, all of the sons became abusers in their own love relationships." Carroll, supra note 112, at 91.

 

[FN208]. See Augustyn et al., supra note 157, at 41.

 

[FN209]. See Guarino, supra note 116, at 18 (asserting that those "within the legal process must exercise responsibility to see to it that such children receive the help they need in order to avoid perpetuating the cycle of violence so harmful to families and society as a whole"). A study in Oregon found that 68% of delinquent youths reported having experienced domestic violence. See id.

 

[FN210]. See, e.g., Hersey v. Hersey, 171 N.E. 815, 820 (Mass. 1930) (stating that the "governing principle ... is the welfare of the child"); Bak v. Bak, 511 N.E.2d 625, 630 (Mass. App. Ct. 1987) ("A Probate Court judge must settle custody in a manner that advances the best interests of the children.").

 

[FN211]. Mass. Gen. Laws ch. 208, 28 (1994).

 

[FN212]. See id. ch. 208, 31 (stating that the "happiness and welfare of the children shall determine their custody").

 

[FN213]. See id. ch. 207, 14.

 

[FN214]. See id. ch. 209C, 10(a) ("Upon or after an adjudication or voluntary acknowledgment of paternity, the court may award custody to the mother or the father or to them jointly or to another suitable person ... as may be appropriate in the best interests of the child.").

 

[FN215]. See Bak, 511 N.E.2d at 630 ("The decision of which parent will promote a child's best interests 'is a subject peculiarly within the discretion of the judge."' (citing Jenkins v. Jenkins, 23 N.E.2d 405, 407 (Mass. 1939))).

 

[FN216]. Some states offer no specific factors for their courts to consider. See, e.g., Ark. Code Ann. 9 13 101 (Michie 1993); S.C. Code Ann. 20 3 160 (Law Co op. 1995); S.D. Codified Laws Ann. 25 4 45 (Michie Supp. 1996). Other states, however, provide specific factors for courts to consider. See, e.g., Idaho Code 32 717 (Michie Supp. 1995) (outlining seven factors for courts to consider in a custody determination); N.D. Cent. Code 14 09 06.2 (Michie 1991) (outlining eleven specific factors for courts to consider in a custody determination).

 

[FN217]. See Mass. Gen. Laws ch. 208, 31 (1994).

 

[FN218]. Id.

 

[FN219]. See id.

 

[FN220]. See R.H. v. B.F., 653 N.E.2d 195, 201 (Mass. App. Ct. 1995) (stating that "the statutes leave it to the trial judge to identify and weigh any factors found pertinent to those interests in the circumstances of the specific dispute"), aff'd sub nom. Custody of Vaughn, 664 N.E.2d 434 (Mass. 1996).

 

[FN221]. See Ardizoni v. Raymond, 667 N.E.2d 885, 889 (Mass. App. Ct. 1996) (delineating factors that a judge may consider in a custody case).

 

[FN222]. 2A Kindregan & Inker, supra note 13, 47.6.

 

[FN223]. See Mass. Gen. Laws ch. 208, 31 (1994) (requiring courts to "provide written findings to support such shared custody order" if a prior or current restraining order was issued against one of the parents).

 

[FN224]. See, e.g., Custody of Two Minors, 487 N.E.2d 358, 362 (Mass. 1986) (determining the best interest of children, considering domestic violence merely as one of the many factors relied upon to rule the parents unfit, and giving no special consideration to child abuse or neglect over the other factors). Furthermore, by negative inference, the priority of domestic violence can be gleaned by its absence in Massachusetts Jurisprudence's discussion of custody and visitation rights. See generally 12 Mass. Jur. Family Law 7:15 to:21 (1994).

 

[FN225]. See Gender Bias Study, supra note 84, at 68 ("Even more disturbing are our findings concerning awards of shared legal custody when a mother has been battered.").

 

[FN226]. Id. at 79. At common law, a husband had the right "to physically chastise his wife." Linda R. Keenan, Note, Domestic Violence and Custody Litigation: The Need for Statutory Reform, 13 Hofstra L. Rev. 407, 411 (1985). In 1871, Massachusetts and Alabama became the first states to outlaw wife battery. See id. at 411 n.27.

 

[FN227]. See Gender Bias Study, supra note 84, at 79 (stating that advocates for battered women were successful in bringing about the change).

 

[FN228]. See Mass. Gen. Laws ch. 209A (1994) (delineating remedies, court procedures, and police powers to be used to prevent abuse). For a summary of the statutory and procedural elements of Chapter 209A, see John P. Zanini, Overview of Mass. Gen. L. ch. 209A, the Abuse Prevention Statute, and the Prosecutorial Role of the District Attorney's Office, 28 New. Eng. L. Rev. 261 (1993).

 

[FN229]. See Mass. Gen. Laws ch. 209A, 3 (1994) ("A person suffering from abuse ... may file a complaint in the court requesting protection from such abuse ....").

 

[FN230]. See id. ch. 208, 31.

 

[FN231]. See id.

 

[FN232]. Gender Bias Study, supra note 84, at 80.

 

[FN233]. See Custody of Vaughn, 664 N.E.2d 434, 440 (Mass. 1996) (stating that the frequency of domestic violence, the effect of such violence on children, and the legislature's conclusions required the courts to focus on domestic violence as an important factor in custody disputes).

 

[FN234]. See supra notes 230 31 and accompanying text.

 

[FN235]. See Vaughn, 664 N.E.2d at 440.

 

[FN236]. See, e.g., Ark. Code Ann. 9 13 101 (Michie 1993) (stating that "the award of custody of the children of the marriage shall be made ... solely in accordance with the welfare and best interests of the children"); S.C. Code Ann. 20 3 160 (Law Co op. 1985) (considering "the best spiritual as well as other interests of the children" in custody cases); S.D. Codified Laws 25 4 45 (Michie Supp. 1996) ("In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child ....").

 

[FN237]. See Ala. Code 30 3 152 (Michie 1989); Alaska Stat. 25.20.090(8), 25.24.150(c)(7) (Michie 1996); Ariz. Rev. Stat. Ann. 25  403B, 25 403H (West Supp. 1996); Cal. Fam. Code 3011 (West Supp. 1997); Colo. Rev. Stat. 14 10 124(1.5)(m) (1987); Del. Code Ann. tit. 13, 722 (Michie 1993); D.C. Code Ann. 16 911(a)(5) (Michie Supp. 1996); Ga. Code Ann. 19 9 1(a)(1) (2) (Michie 1991); Idaho Code 32 717A (Michie Supp. 1995); 750 Ill. Comp. Stat. Ann. 5/602 (West Supp. 1996); Ind. Code Ann. 31 1 11.5 21(a) (West Supp. 1996); Iowa Code Ann. 598.41 (West Supp. 1996); Kan. Stat. Ann. 60 1610(a)(3) (Supp. 1996); Ky. Rev. Stat. Ann. 403.270(1) (Michie Supp. 1996); Me. Rev. Stat Ann. tit. 19, 214(5) (West Supp. 1996); Md. Code Ann., Fam. Law 9  101.1(b) (Michie Supp. 1996); Mich. Comp. Laws Ann. 722.23 (West Supp. 1996); Minn. Stat. Ann. 518.17 (West Supp. 1997); Mo. Ann. Stat. 452.375(2) (West Supp. 1997); Mont. Code Ann. 40 4 212(1) (1995); Neb. Rev. Stat. 42 364(1) (2) (Supp. 1996); Nev. Rev. Stat. 125.480(4)  (5) (1995); N.H. Rev. Stat. Ann. 458:17 (Michie 1992 & Supp. 1996); N.J. Stat Ann. 9:2 4 (West 1992); N.Y. Dom. Rel. Law 240(1) (McKinney Supp. 1997); N.C. Gen. Stat. 50 13.2(a) (b) (Michie Supp. 1996); N.D. Cent. Code 14 09 06.2(1) (Michie Supp. 1995); Ohio Rev. Code Ann. 3109.04(F)(2)(c) (Anderson 1996); Okla. Stat. Ann. tit. 10, 21 (West Supp. 1997); Or. Rev. Stat. 107.137(1) (1995); 23 Pa. Cons. Stat. Ann. 5303(a) (West Supp. 1996); R.I. Gen. Laws 15 5 16(g)(1) (Michie 1996); Tenn. Code Ann. 36 6 106 (Michie 1996); Tex. Fam. Code Ann. 153.004 (West 1996); Va. Code Ann. 20 124.3 (Michie Supp. 1996); Wis. Stat. Ann. 767.24 (West 1993 & Supp. 1996); Wyo. Stat. Ann. 20 2 113(a) (Michie 1996). See generally Family Violence Project, National Council of Juvenile & Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 Fam. L.Q. 197 (1995) (providing a slightly dated, yet thorough, analysis of child custody provisions of most jurisdictions).

 

[FN238]. See Family Violence Project, supra note 237, at 199 200. Some jurisdictions have added the requirement to consider domestic violence since the article's publication in 1995. See, e.g., Ala. Code 30 3 131 (Michie Supp. 1996); Ind. Code Ann. 31 1 11.5 21(a)(7) (West Supp. 1996); Md. Code Ann., Fam. Law 9 101.1 (Michie Supp. 1996); Or. Rev. Stat. 107.137 (1995); Tenn. Code Ann. 36 6 106 (Michie 1996).

 

[FN239]. See, e.g., Alaska Stat. 25.20.090(8), 25.24.150(c)(7) (Michie 1996); Cal. Fam. Code 3011(b) (West Supp. 1997); Minn. Stat. Ann. 257.025 (West 1990); id. 518.17 (West Supp. 1997); Ohio Rev. Code Ann. 3109.04(F)(2)(c) (Anderson 1996); Or. Rev. Stat. 107.137 (1995); 23 Pa. Cons. Stat. Ann. 5303(a) (West Supp. 1996).

 

[FN240]. See, e.g., Feaster v. Feaster, 452 S.E.2d 428, 429 (W. Va. 1994) (recognizing spousal abuse as a factor to be considered in determining parental fitness for child custody); Knock v. Knock, 621 A.2d 267, 273 (Conn. 1993) ("We therefore conclude that testimony concerning battered woman's syndrome was relevant to the best interests of the child in determining custody.").

 

[FN241]. See, e.g., Ariz. Rev. Stat. Ann. 25 403(H) (West Supp. 1996); D.C. Code Ann. 16 911(a)(5) (Michie Supp. 1996); 750 Ill. Comp. Stat. Ann. 5/610 (West Supp. 1996); Ky. Rev. Stat. Ann. 403.270(1)(f) (Michie Supp. 1996); Mo. Ann. Stat. 452.375.2(5) (West Supp. 1997); N.J. Stat. Ann. 9:2 4 (West 1993); N.D. Cent. Code 14 09 06.2.1(j) (Michie Supp. 1995).

 

[FN242]. Gant v. Gant, 892 S.W.2d 342, 345 (Mo. Ct. App. 1995).

 

[FN243]. D.C. Code Ann. 16 911(a)(5) (Michie Supp. 1996).

 

[FN244]. See Custody of Vaughn, 664 N.E.2d 434, 446 (Mass. 1996) (holding that written findings specifically addressing domestic violence are required in all custody cases).

 

[FN245]. See id.; see also supra note 233 and accompanying text.

 

[FN246]. See, e.g., Ala. Code 30 3 131 (Michie Supp. 1996); Ariz. Rev. Stat. Ann. 25 403B (West Supp. 1996); Colo. Rev. Stat. 14 10  124(1.5)(m) (1987); Del. Code Ann. tit. 13, 705A (Michie Supp. 1996); D.C. Code Ann. 16 911(a)(5) (Michie Supp. 1996); Haw. Rev. Stat. Ann. 571  46(9) (Michie Supp. 1996); Idaho Code 32 717B(5) (Michie 1983); Iowa Code Ann. 598.41 (West Supp. 1996); La. Rev. Stat. Ann. 9:364(A) (West Supp. 1997); Minn. Stat. Ann. 518.17(2)(d) (West Supp. 1997); Nev. Rev. Stat. 125.480(5) (1995); N.D. Cent. Code 14 09 06.2(1)(j) (Michie Supp. 1995); Okla. Stat. Ann. tit. 43, 112.2 (West Supp. 1997); Tex. Fam. Code Ann. 153.004 (West 1996); Wash. Rev. Code Ann. 26.09.191(1) (2) (West Supp. 1997); Wis. Stat. Ann. 767.24(2)(b) (c) (West 1993 & Supp. 1996). But see, e.g., Gant, 892 S.W.2d at 345 (holding that no presumption exists against custody for the batterer, and that all factors of best interest analysis must be weighed equally). Until the 1995 statutory presumption against custody, Texas had a preference that the non violent parent, rather than the batterer be awarded custody. See Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex. 1990) (holding that spousal abuse is to be considered "a factor that weighs against the abusive parent").

 

[FN247]. See, e.g., Fla. Stat. Ann. 61.13(2)(b)(2) (West Supp. 1997) (stating that only a felony conviction for domestic violence creates a presumption against custody); cf. N.Y. Dom. Rel. Law 240(1) (McKinney Supp. 1997) (requiring consideration of domestic violence if allegations of abuse are proven by a preponderance of the evidence).

 

[FN248]. See, e.g., D.C. Code Ann. 16 911(a)(5) (Michie Supp. 1996).

 

[FN249]. Idaho Code 32 717B(5) (Michie 1983); see also Ariz. Rev. Stat. Ann. 25 403H (West Supp. 1996) (presumption against joint custody if "significant history of domestic violence").

 

[FN250]. See, e.g., Ala. Code 30 3 131 (Michie Supp. 1996); Del. Code Ann. tit. 13, 705A (Michie Supp. 1996); N.D. Cent. Code 14 05  22(3) (Michie Supp. 1995).

 

[FN251]. See supra Part III.

 

[FN252]. Davidson, supra note 9, at 13.

 

[FN253]. National Council on Juvenile and Family Court Judges, Family Violence: A Model State Code 402 (1994).

 

[FN254]. Custody of Vaughn, 664 N.E.2d 434, 440 (Mass. 1996) (noting that the probate court's findings never addressed Ross's violent behavior or its impact on Vaughn).

 

[FN255]. H.R. Con. Res. 172, 101st Cong. (1990).

 

[FN256]. Davidson, supra note 9, at 15.

 

[FN257]. See National Council on Juvenile and Family Court Judges, supra note 253, 402.

 

[FN258]. Mass. Gen. Laws ch. 208, 28 (1994).

 

[FN259]. Id. ch. 208, 31.

 

[FN260]. See Kelly v. Kelly, 425 N.E.2d 760, 761 (Mass. App. Ct. 1981) (finding that the psychological health of son improved after physically abusive father left marital home).

 

[FN261]. See supra Part III.

 

[FN262]. See Custody of Vaughn, 664 N.E.2d 434, 440 (Mass. 1996).