Melner, Amy R., "Rights of Abused Mothers vs. Best Interest of Abused Children: Courts' Termination of Battered Women's Parental Rights Due to Failure to Protect Their Children From Abuse," 7 S. Cal. Rev. L. & Women's Stud. 299 (Spring 1998).


There exists in American society an increasing awareness of violence within the home. The effects of battering on women are becoming more widely recognized by all members of society--beyond simply academics and feminists. [FN1] The criminal justice system recognizes the effect violence may have on a woman to the extent that she may now use battered woman syndrome as an affirmative defense when she is prosecuted for physically harming or killing her abuser. [FN2]

Unfortunately, child abuse commonly accompanies spousal abuse. Studies have found that in over half the homes where women are battered by their male partners, the children in the home are also *300 physically abused by the batterer. [FN3] Often, however, the public does not recognize the link between wife battering and child abuse. [FN4] Most are sympathetic to the plights of battered women and abused children when considered independently. Yet, when a battered woman remains in the home with a man who is also abusing her children, public sympathy changes to indignation toward the mother who has failed to intervene on her children's behalf. [FN5]

This lack of empathy for battered women who fail to protect their children from harm is apparent in the treatment of abused mothers in the judicial system. Women who are victims of abuse face numerous consequences when they fail, as a result of their own abuse, to protect their children. Potentially, these women may face criminal liability, [FN6] civil liability [FN7] or biases and misinterpretation in family court custody decisions (which often require continued contact with their abusers) [FN8] *301 for their failure to protect their children. Finally, courts may terminate their parental rights for abuse and neglect. [FN9]

A. No Clear Solutions

The termination of battered women's parental rights for failure to protect their children from abuse has recently become a topic of interest to legal commentators. A number of recent articles focus on the bias perpetrated by the judicial system against battered women. Many of these commentators identify the system's failure to recognize trauma experienced by battered women and the resulting psychological, social and economic constraints that keep battered women from taking steps to protect their children from abuse. [FN10] In certain respects battered mothers have been wronged by the system; however, serious harm may be done to children as a result of their mothers' inaction. [FN11] As such, a delicate balance exists between advocating recognition of battered women's psychological and social powerlessness and protecting children whose physical well-being and lives risk being compromised if they remain with a battered mother. Because of this balance, courts face difficult choices when deciding what is in the best interest of the child.

Serious consideration must be taken of the condition of both the mothers and the children in abusive homes. The goal of this Article is *302 to emphasize that the plights of a mother and her children are inextricably linked, and that more must be done to protect the interests of both. [FN12]

The court's sole purpose is to act in the best interest of the child--to try to protect the child from any further harm at the hands of the abuser. Child protection is generally based on a no-fault standard: it is largely immaterial to the court whether a mother is either unable or unwilling to protect her children from abuse. [FN13] For the child suffering from abuse, the distinction is largely meaningless. As a result, courts often appear indifferent to the plight of battered women. However, perhaps courts are less systematically derogating the plight of battered women than they are protecting children from abuse--at any expense. [FN14] Seemingly, two competing interests exist: the understanding and advocacy of battered women and the protection of abused children.

B. Termination of Parental Rights

Every state has a civil statute authorizing the state to remove a child from the care of his or her parents in cases of abuse, neglect or other mistreatment of the child. [FN15] Furthermore, "[a] parent who stays in a home in which children are abused by the other parent . . . can . . . lose custody or even parental rights." [FN16] Though in most instances it is *303 the father who is actively abusing the child, mothers are also likely to be held responsible for abuse and neglect. [FN17] It is most frequently the mother who is charged in juvenile courts for failing to protect her children when the active physical abuse was carried out by a man. [FN18]

The Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees the right of parents to be in control of their children's upbringing. [FN19] Termination irrevocably denies parents this right. [FN20] Indeed, this is a harsh consequence for a mother who is unable to protect her children due to her own physical abuse or whose affirmative acts to protect the well-being of her children have been misunderstood to constitute child abuse. [FN21]

Mothers' rights are being undermined by courts which may misevaluate the best interests of the children. This occurs when courts misperceive battered mothers to be unfit based largely on myths and regard affirmative acts taken by the mother to protect her children as passivity and thus a failure to protect. [FN22]

Part II of this Article describes two models that seek to explain common behaviors exhibited by battered women: the "pathological response" model and the "rational response" model. First, pathological responses are the temporary psychological changes that a woman may go through as a result of her abuse. Such psychological changes are not mental illness, but rather, are situational responses. These responses result in a temporary destruction of decision- making competency and result in the inability to weigh the costs and benefits of her situation. Many battered women who display such psychological symptoms are often misdiagnosed as being mentally ill. In addition, many battered women remain in such situations long after the abuse *304 begins. "Learned helplessness" [FN23] suggests that these battered women become passive and thus psychologically and emotionally unable to leave an abusive relationship. "Traumatic bonding" [FN24] also suggests that such battered women form a positive attachment to their abusers and are thus unable to sever their relationship. However, it must be noted that such behavior is situationally specific--it is less irrational and more a natural reaction to the abuse.

Rational responses, on the other hand, are conscious choices battered women make after weighing all of the possible outcomes. A battered woman may in fact be affirmatively choosing to stay in such a relationship to protect herself and her children from the threat of escalating violence. In fact, such violence is likely to escalate even if she seeks a protective order against her abuser. She may also choose to stay because she is financially dependent on her abuser and battered women's shelters may provide inadequate transitional assistance. Lastly, a battered woman may deny or attempt to minimize the extent of violence in her relationship. This may be due largely to the reality that if she acknowledges the abuse and seeks help, she risks losing custody of her children.

Part III presents the approach taken by courts in proceedings terminating the parental rights of battered women. Courts address the dynamics of abuse in a number of different ways: courts may fail to address the existence of spousal battering; courts may actually use the psychological effects of battering against the mother; courts may fault the mothers for their denial or minimization of spousal abuse; courts may note the spousal abuse and use the mother's failure to leave against her; or courts may assume that an abusive pattern will be repeated in future relationships.

Finally, Part IV suggests that given the experiences of battered women, courts may be misguided in their evaluation of the best interest of the child. A court's response to the battered woman depends largely on the model the court adopts. By basing its decision on a strict no-fault standard, the court assumes that the mother has failed to act in the child's best interest by failing to protect the child from abuse. Thus, the court's evaluation is based on the assumption that the only way a mother may protect her child from abuse is to leave the relationship. This Article argues that if courts adopt a rationality standard in cases terminating battered women's parental rights and take *305 into account the reasons that lead women to stay in such relationships, then the best interests of both the children and the mothers will be served.


A. Pathological Responses

Pathological responses are the result of temporary psychological effects on the victim of abuse. Such responses are typified by a temporary lack of decisionmaking competency and an inability to weigh the costs and benefits of one's situation. These psychological effects are not the result of mental illness, but are temporary situational responses. [FN25]

1. Battered Woman's Syndrome

Within the last twenty years, largely through the work of Lenore Walker, battered woman's syndrome has become legitimized as an evidentiary tool to help explain particular patterns of behavior when a woman who has killed her abuser claims self-defense. Walker defines a battered woman to be "a woman who has been physically, sexually, or seriously psychologically abused by a man in an intimate relationship, without his regard for her rights, in order to coerce her into doing what he wants her to do at least two times, often in a specific cycle." [FN26] Walker has established a pattern of behavior that is common among women who are battered by their male partners. [FN27]
*306 The typical battered woman has poor self-image and low self- esteem, basing her feelings of self-worth on her perceived capacity to be a good wife and homemaker. . . . She may believe that she is the one at fault for not stopping her batterer's violent behavior. . . . she suffers from continual stress and is particularly subject to psychosomatic ailments and depression. [FN28]

Battered women often underestimate their ability to alter their situations due to their diminished sense of self-esteem. [FN29] Walker contends that because battered women "live under constant stress and fear," they suffer adverse physical and psychological effects. [FN30]

2. Learned Helplessness

A major psychological effect of battered woman's syndrome is the battered women's inability to leave their battering relationships. Walker believes this is a result of "learned helplessness" and theorizes that "[o]nce the women are operating from a belief of helplessness, the perception becomes reality and they become passive, submissive, 'helpless."' [FN31] Walker describes the progression leading up to learned helplessness:
Repeated batterings . . . diminish the woman's motivation to respond. She becomes passive. Secondly, her cognitive ability to perceive success is changed. She does not believe her response will result in a favorable outcome, whether or not it might. Next, having *307 generalized her helplessness, the battered woman does not believe anything she does will alter any outcome . . . She cannot think of alternatives. . . . Finally, her sense of emotional well-being becomes precarious. She is more prone to depression and anxiety. [FN32]

Further, shame, combined with the fear that others will disbelieve their accounts of abuse, keep battered women from seeking help. [FN33]

3. Traumatic Bonding

Donald Dutton and Susan Lee Painter suggest that battered women do not passively remain in battering relationships; rather, they form intense emotional attachments to their batterers. [FN34] They apply the theory of "traumatic bonding" to explain the relationship between battered women and their batterers. Traumatic bonding refers to the process by which a person who has been abused forms a strong emotional attachment to his or her abuser. [FN35] Such an attachment has two components: a power differential and an intermittent pattern of abuse. The pattern initially develops due to the power differential in the relationship. A batterer asserts himself over his victim through physical abuse; this results in a battered woman feeling powerless. The battered woman, in order to improve her own sense of power, then develops an attachment to her abuser. "As the power imbalance magnifies persons in low power will feel more negative in their self-appraisal, more incapable of fending for themselves, and thus more in need of the high power person. . . . eventually . . . creat[ing] a strong affective bond to the high power person." [FN36]

Traumatic bonding is also characterized by intermittent abuse. [FN37] The periodic nature of abuse results in a battered woman believing that her situation will improve; she therefore remains in the relationship. "The victim's hope is that maybe this time it will be better; maybe this time, he'll stop. And for reasons she cannot understand, powerful emotional bonds keep pulling her back--bonds forged by *308 intermittent reinforcement." [FN38] When occurring in conjunction with the inherent power differential within the battering relationship the intermittent abuse serves to create strong emotional bonds between the man and woman which can be difficult if not impossible to break. [FN39]

4. Situational Specificity

The psychological symptoms evidenced by a battered woman may result in her wrongly being diagnosed as "insane" or "crazy." [FN40] However, Dutton and Golant note that it is not the sum of specific attributes in a battered woman's personality that causes her to enter and remain in an abusive relationship. Rather, it is the nature of the relationship, not the nature of the woman, that causes the battered woman to become trapped. [FN41] In short, the behaviors exhibited by victims of domestic violence are thought to be "a terrified human being's normal response to an abnormal and dangerous situation." [FN42]

Contrary to the prediction of courts that the mother's psychological difficulties are unlikely to change, battered women's psychological symptoms typically disappear once they are out of the abusive relationship. A battered woman's actions, which may seem unusual or crazy to those outside of the relationship, "may have purpose and logic when viewed within the context of the violence and terror in which she lives." [FN43] In this context, the apparently irrational behaviors of battered women may, in fact, serve as a survival mechanism and "[t]he symptoms of mental illness displayed by many battered women tend to quickly clear up once they are able to live without fear of further violence." [FN44] Thereby, battered women who are able to free themselves from their abusive relationships typically abandon this seemingly abnormal behavior. [FN45]

*309 Furthermore, battered women who free themselves from these relationships are not likely to enter into new abusive relationships. This dispells a common myth regarding battered women. In her study of battered women, Walker found that
[t]hough several of the women in [her] sample had a series of violent relationships, this pattern did not hold true for most of those interviewed. While they wanted another intimate relationship with a man, they were extremely careful not to choose another violent one. . . . Women who had received some beneficial intervention rarely remarried another batterer. [FN46]

Therefore, once a battered woman is no longer in an abusive relationship, it is unlikely that she will return to her abuser or will continue a pattern of seeking out abusive partners. [FN47]

B. Rational Responses--Staying For Her Children

Battered women's responses may not be a form of psychological entrapment, but may in fact be a form of reasoned action. A battered woman may be making rational choices in order to avoid undesirable outcomes. [FN48] In choosing to remain in the home with her batterer, a battered woman may be affirmatively acting to protect her children by: (1) minimizing abuse and preventing escalation of abuse; and/or (2) avoiding the harsh social and economic realities that she and her children will face if she leaves. [FN49] In addition to a lack of adequate protection and shelter, fear of her batterer leads many battered women to conclude that the safest option for themselves and their children is to "survive within the relationship." [FN50] Thus, a mother may indeed be acting to protect her children when she remains with an abusive partner.

Many women stay in the relationship for their children. They may do so to avoid the perceived social stigma associated with a failed marriage, or to protect themselves and their children from escalating violence. Further, a woman's lack of financial resources, coupled with the inadequacy of shelters and the fear that she may lose her children *310 should she reveal her abuse, provide reasons for the battered woman to remain in the abusive relationship.

1. Social Stigma

"Battered women consistently point to 'the children' as a primary reason for staying in an abusive relationship." [FN51] Often a woman's sense of self resides solely in her role as wife and mother. This places battered women in a precarious position: "[w]omen get the sense that to succeed as women they must succeed in their conjugal relationships, and that they have an obligation to try their utmost to make these relationships work, thus preserving their families." [FN52] The women come to internalize powerful cultural messages. Such women often believe that the family must remain intact so that her children are raised with a father. In addition, she may believe that she is incapable of raising her children without a partner. Further, she may be trying to spare her children the social stigma of coming from a "broken" home. [FN53]

2. Threats of Further Physical Harm

Often battered women fail to seek help from outside authorities because taking such action may make their precarious home situation even worse for both themselves and their children. Even just simply discussing separation may be extremely dangerous for a woman in an abusive relationship. [FN54] Women "fear[ ] that talking about the violence in too much detail will upset the precarious situation and cause further harm. These perceptions are probably accurate." [FN55] Angela Browne, in her study of battered women who killed their spouses, found that many of her subjects chose to remain with their abusers either due to the belief that an attempt to leave would be met with physical retaliation or their prior attempts to leave had actually resulted in further *311 violence. [FN56] These women's fears "were supported by their past experiences with the men's violence, as well as by threats of further violence if they attempted to leave." [FN57]

If a mother takes steps to leave the abusive relationship, she often faces violent consequences. A battered woman's attempts to acquire assistance are accompanied by an increased chance that she or her children will face increased violence--even death--at the hands of her batterer. [FN58] One court described how children were effectively "held hostage" by their father when their abused mother left the home. [FN59] Presumably, this tactic served to ensure the mother's return and to ensure that she would not permanently leave the marriage or seek to to secure intervention or protective services. In fact, "the most extreme violence [is] turned against women at separation. Many of the women killed by their husbands are killed after they have separated." [FN60] Therefore, battered women are often justified in believing "that their abusers will find them and retaliate against [them for] leaving." [FN61]

Martha Mahoney defines such attacks as part of what she calls "separation assault"--"a specific type of attack that occurs at or after the moment [a battered woman] decides on a separation or begins to prepare for one." [FN62] Such attacks are not strictly physical retaliation; they generally serve to assert the batterer's power and to keep the woman firmly connected to her abuser. [FN63]

Furthermore, when such women turn to law enforcement and put their fates in the hands of the authorities, they may actually put themselves at even greater risk. "Abusive husbands may become enraged by the issuance of a [Temporary Restraining Order ("TRO")] and *312 seek revenge. The victims can do nothing but call for help. . . . Even when the abuse actually violates the prohibitions of the TRO, the victims have no recourse but to wait for police assistance." [FN64] Most agree that "civil protection orders are useless with the 'hard core' batterer for whom nothing short of incapacitation with a jail sentence would be effective." [FN65]

Therefore, taking steps to leave a battering relationship can be extremely dangerous and battered women, aware of the danger, take the action they believe to be most appropriate for protecting themselves and their children--they stay with their batterer.

3. Lack of Financial Resources

The reality of economics may keep women from pursuing escape from their abusive partners. [FN66] Traditional female socialization of women into the role of wife and mother may result in diminished opportunities for them in the workforce. Additionally, "overall social economic discrimination against women" has a magnified detrimental impact on battered women. [FN67] "[S] ocietal economic discrimination against women encourages many battered women to persist in their violent relationships because of the material disadvantages they would encounter were they to leave the batterer and support themselves-- and their children . . .--financially." [FN68] Studies show that the greater a woman's economic resources, the more likely she is to terminate her relationship with her batterer. [FN69] Therefore, a woman who has devoted her life to staying at home and caring for her children--a woman who has few economic resources--will be exceedingly unable to extricate *313 herself from an abusive marriage. Thus, a woman may stay in order to protect the standard of living of herself and her children and to avoid almost certain poverty or homelessness. [FN70]

4. Inadequacies of Battered Woman Shelters

Deficiencies in services offered to battered women may serve to convince such women that their only option is to remain with their abusers. Shelters are in short supply and often have a maximum time period for which a woman may stay. [FN71] Most shelters limit a woman's stay to six weeks, during which time she must find shelter, a way to support herself and her children, seek any necessary legal aid and devise a plan to protect herself and her children from their batterer. [FN72] Therefore, the long-term needs of battered women are not satisfied and shelters become inadequate as transitional housing for an effective escape. [FN73] The time limit imposed at battered women's shelters--usually thirty days--is
far too short a period for an effective transition to an independent establishment, particularly for a mother . . . without sufficient economic resources. For an effective exit, most mothers of abused children are likely to need longer-term transitional low-cost housing, job training, child care, health care, health insurance, and adequate economic support during the transitional period. [FN74]

In addition, battered women's shelters often prohibit women from bringing in male children over the age of thirteen. The purpose of this practice is to protect the "safety and confidence of residents who have survived violent abuse, but it also tears apart siblings, destroys mother/child relationships, and exacts a [difficult choice] from some women fleeing their abusers." [FN75] Shelters place women in a precarious position by turning away those women who bring their children with them. Particularly in a situation where the children are also being abused, the mother will not want to leave without taking her children. In fact, if she does so, she may risk losing her children. [FN76]

*314 Astoundingly, even when a woman retreats to a battered woman's shelter with her children, that act may be used as evidence against her in custody or termination proceedings. One court "deemed battered mothers 'unfit' because they removed their children from the violent home and took them to a shelter for protection." [FN77] Another judge noted "a woman's extensive contacts with a battered woman's shelter meant that her environment was 'characterized by self-interest and excessive liberalism.' " [FN78]

5. Fear She Will Lose Her Children

Battered women may deny or attempt to minimize abuse out of fear that they will lose custody of their children. "For most battered women, the greatest source of stress in their lives is fear of losing their children." [FN79] These mothers fear that if they seek help or if they seek treatment for their children, their children will be taken from them. Because women in our society are expected to be protectors and care givers of their children, [FN80] mothers face "much of caseworkers' and child abuse experts' wrath" [FN81] and are ultimately blamed by the courts for abuse.

Women in Walker's study "fearfully told of losing custody when they ran away from home to escape the abuse, but left the children in the batterer's physical custody while they were gone." [FN82] However, when women are able to escape to shelters with their children, [FN83] they risk having their children's abuse discovered by the authorities, which could lead to loss of custody or ultimately the termination of parental rights. These are not ungrounded fears. Advocates working in battered women's shelters are advised regarding procedures for reporting *315 child abuse. [FN84] They describe the negative implications that mandatory reporting could have on those to whom battered women turn for assistance:
Under a mandatory reporting law, advocates for battered women may be viewed as agents of the state, rather than allies of the battered women. Such a law could put the advocates in the unenviable position of having to report a victim of woman abuse to Child Protection Services and thus collaborate in her revictimization by a patriarchal system perceived as insensitive to the battered woman's needs. [FN85]

Thus, if battered women are able to overcome the obstacles that keep them in abusive relationships, they risk the loss of their children once they become part of the system by submitting themselves to social assistance.

Thus, the actions of a battered woman may be those of a "reasonable person." [FN86]


The needs of battered women and abused children often overlap. It is impossible to completely separate the best interests of battered women from the best interests of their children; however, this is what courts repeatedly attempt to do when reviewing cases in which parental rights are terminated. Actions for parental termination are based on a no-fault standard. Such an approach "recognizes that in most cases it is not the fault of the parents that they cannot provide the minimally adequate care that a given child needs." [FN87] Therefore, according to the courts, it is irrelevant whether a battered mother can't or won't protect her children from abuse--from an abused child's perspective, it doesn't matter. "Parental culpability, if present, is more often than not an irrelevant . . . feature of the child protection *316 proceeding . . . A 'no-fault' understanding may be more helpful in protecting the child than entertaining ideas of culpability, with the focus on parental capacity to meet the minimal needs of a given child." [FN88]

Such a singular focus makes sense in the context of protecting children from abuse; however, it fails to give adequate consideration to rational, affirmative responses battered women might take to protect their children. Such actions are often misunderstood by the court, and subsequently result in the court assuming a largely pathological response to abuse--a learned helplessness or traumatic bonding-based analysis. Courts repeatedly assert that the standard on which they rely is the "best interest of the child." [FN89] However, in so doing, the courts and the legislatures that create those standards fail to recognize the complex human interaction that results in the need to provide both children and mothers with assistance. For example, the Iowa legislature, in its standard for termination, has set forth: "In considering whether to terminate parental rights, we must give primary consideration to the physical, mental, and emotional condition[s] and needs of the child." [FN90] In Minnesota, "the child's best interests . . . remain the paramount consideration in every termination case." [FN91] When the sole focus of the court is the best interest of the child, it is not surprising, [FN92] that mothers are blamed for failing to take action to protect their children from abuse. As a result, abused women, though they are not the actual perpetrators of the abuse, are held to be as responsible and accountable for the situation as the abuser himself. While it is true that such proceedings exist to serve the best interests of children, to protect them from physical and emotional harm, it need not be done at the expense of battered women.

*317 A. Failure to Address Battering of Mothers

Considering the degree to which spousal abuse and child abuse take place in the same homes, [FN93] discussion of spousal abuse is noticeably absent from court opinions in the context of the termination of battered mothers' parental rights. When mothers are acknowledged to be victims of abuse, the discussion of the battered woman is often relegated to footnotes [FN94] and dissenting opinions. [FN95] In In re Shane T., a New York court concluded that the mother's failure to protect the child constituted abuse and removed the child from his mother's custody. The court noted that the abusive father had a "history of assaultive behavior in the home," [FN96] yet mentioned only in a footnote that "the respondent father beat the respondent mother so severely that she had to flee . . . to escape him." [FN97]

In In re S.D.S., the majorityof the Court of Appeals of Texas affirmed the district court's termination of the mother's parental rights for "knowingly allow[ing] the children to remain in conditions and surroundings which endangered the physical and emotional well-being of the children." [FN98] The court acknowledged that there "was no evidence that the Natural Mother engaged in conduct herself which endangered the physical and emotional well- being of her children," [FN99] yet failed to note that she too was a victim of abuse at the hands of the children's father. The court's only mention of the mother's abuse is in the dissenting opinion in which the dissenting judge noted briefly that the mother feared her husband "because of his harassment and abuse of her, as well as of her children." [FN100] The dissent further described:
The mother testified he struck her, forced her to commit acts of prostitution by threatening her life and the life of her children and that she was not free to leave the house with both children. The husband would not allow her to take both children with her when she left; that he held one child as hostage, more or less. [FN101]

*318 The majority, however, in deciding to terminate the mother's parental rights, failed to note the significance of this evidence. According to this court, the bottom line appears to be that the children suffered abuse and the mother did nothing to stop it; [FN102] therefore, the mother had effectively surrendered her right to be a parent to her children.

When spousal abuse is acknowledged by the courts, it is typically mentioned as an aside. The courts often recognize the abuse, yet fail to recognize its significance in leading to the woman's mental and physical paralysis as well as her inability, despite her best efforts under the circumstances, to provide a stable environment for her children or to protect them from physical abuse. They describe the physical and emotional manifestations of battered woman syndrome, then rely on the existence of these traits as justification for removing the children from their mother's custody or terminating her parental rights.

B. Psychological Effects Held Against Mother

Courts often fail to recognize that psychological symptoms experienced by the mothers in question, frequently cited as rationale for termination, are commonly suffered by battered women as a result of their abuse. Though the emotional well-being of battered women has been compromised as a result of abuse, mothers are castigated for displaying evidence of psychological afflictions common among battered women. In In re Tonya Purvis, an Ohio court noted that the father "has spent time in jail for domestic violence." [FN103] Within the same paragraph, the court based its decision to terminate the mother's parental rights on her "need[ing] long-term psychological counseling" and her having a "dependent personality." [FN104] Similarly, in In re B.W.S., a Minnesota court asserted that the "mother's psychological condition render[s] her unable to appropriately care for the children." [FN105] Though later in the opinion the court described abuse of the mother by the father in relation to the father's unfitness, the court failed to connect the abuse with the mother's psychological symptoms. [FN106] Ultimately affirming the termination of the mother's parental rights, the *319 court concluded that the "mother's psychological condition which precludes her from properly parenting the children probably will not change." [FN107]

In addition, courts may place extraordinary expectations on battered women. In In re B.W.S., the court affirmed the termination of the mother's parental rights by asserting that the mother would be unable to deal with her children's special needs due to post-traumatic stress disorder resulting from their own abuse. [FN108] Such a rationale for the termination of parental rights results in a no-win situation for women suffering from battered woman's syndrome. It would be very difficult for a victim of spousal abuse to ever get her children back if most children who have suffered from abuse have "special needs" and mothers with "psychological conditions" are deemed unable to care for such children.

In light of situational specificity and the likelihood that such conditions will disappear once a battered woman leaves the battering relationship, [FN109] courts' reliance on such symptoms to support the termination of a battered woman's parental rights seems patently unfair.

C. Faulting Mothers' Minimization of or Refusal To Acknowledge Abuse

Courts often fault battered mothers for failing to acknowledge their abuse and for failing to confront their abusers. Noting that the mother denied that she was a battered woman in In re T.R., the Vermont Supreme Court affirmed an order of termination relying on the trial court's determination that "there could be no real progress toward reunification until mother was able to acknowledge and avoid conduct that put herself and her children at risk." [FN110] The court concluded that the mother's denial indicated "her inability to make protecting her children a priority over her relationship with her husband." [FN111]

Similarly, in In re L.B., the Court of Appeals of Iowa described a battered woman as "unwilling to address the issue of physical abuse in an appropriate way." [FN112] The court stated that "she vacillated between *320 admitting, denying, and minimizing abuse of herself and [her child]." [FN113] The court concluded that "the permanency order was the result of [the mother's] inability or unwillingness to address the issue of domestic violence in her home." [FN114] Even though the court recognized improvements made in the mother's parenting skills, it noted that the mother "failed to recognize the abuse perpetrated by her husband." [FN115] The court believed that it was essential in meeting a child's needs that parents recognize and acknowledge abuse. [FN116] In E.J.R. v. Young, the Supreme Court of Vermont affirmed a finding that the children involved were in need of care and supervision based on the fact that "[t]he mother has long tolerated the violence toward herself and her children, and continues to deny the abusive home environment." [FN117]

It is true that battered women need to recognize their abuse in order to help themselves and their children. However, courts fail to address why these women deny the existence of abuse. Through the use of the term "unwilling" to describe the usual responses of battered women, courts are suggesting that these women are responding in a way different from others similarly situated. By deeming the responses of women in abusive situations as inappropriate in relation to their children, the question is prompted: inappropriate according to whom? According to Lenore Walker, [FN118] these women are exhibiting common responses to abuse. These women are not acting differently from what might be expected from any woman suffering abuse at the hands of her husband. As discussed above, [FN119] any victim of abuse would respond in a similar manner.

The courts' lack of understanding may be a result of the fact that many women are finally able to extricate themselves from an abusive *321 relationship once the abuse becomes directed towards the children. "[M]ost women are highly motivated to get help for their children, and one of the key factors around motivating a mother to leave her batterer is harm to her child." [FN120] Lewis Okun confirms that "many shelter residents note child abuse by their mate as a precipitant of their decision to enter shelter." [FN121] In addition, in her study of battered women who have killed their abusers, Lenore Walker found that:
the batterer's physical abuse of a child is often the catalyst for battered women who kill--the final straw, the thing they can no longer tolerate without going mad. In many cases, knowledge of child abuse is the thing that prompts a battered woman to kill in self-defense, to protect the child and herself from a violence that knows no bounds. [FN122]

Perhaps this is the reason why many fail to have sympathy for women who stay in such a marriage. If many battered women are able to extricate themselves at the point their children become the victims of abuse, those who can't are seen by courts as unfit to be parents.

Such an approach, however, fails to take into consideration the rational reasons why a battered women may choose to remain in the relationship. Choosing to stay and to minimize the violence may serve the best interest of the child better than attempting to leave and facing grave economic repercussions, lack of societal resources and escalation of the violence.

D. Failure to Leave Held Against The Mother

A woman who stays in a marriage that puts her children's physical and emotional well-being in danger often loses her parental rights. This result suggests that the courts find her to be an incapable parent. Such was the case in In re Dalton where an Illinois court acknowledged a mother's abuse and the resulting fear she experienced, yet terminated her parental rights because she failed to leave her abuser. [FN123] The descriptions of abusive and threatening behavior included an assertion that the abusive husband had, in front of their children, placed a gun to the mother's head. [FN124] In addition, "he would threaten to harm her family if she would leave." [FN125] As a result, "she *322 felt compelled to stay . . . for fear of harm to the children." [FN126] "She . . . testified that her husband had threatened the children and had pointed a gun at her son's head and that he threatened to kill the child if [she] did not stay with him." [FN127] Yet the court noted that even if the mother "had made every effort to protect the children from her husband's dangerous proclivities," her parental rights must still be terminated. [FN128]

In In re Katherine C., a family court in New York asserted that though
respondent-mother admitted that her husband was a violent man; that fear pervaded the household; that he had threatened, on more than one occasion, to kill the entire family; . . . that he had held a knife to her throat. . . a responsible parent would have marshaled [a perception of impending harm] into concrete, definitive action to protect her children. [FN129]

This court seemingly adheres to the same beliefs as the Supreme Court of Nebraska which asserted that a battered woman's fear "does not, by itself, excuse her failure to extricate children from a dangerous environment." [FN130]

In In re Joshua M., the Nebraska Court of Appeals took note of the negative effect an abuser's threats can have on the mother. [FN131] The court asserted that "it has been difficult for [the mother] to separate from [the abusive father] during the course of these proceedings; however she states that this is because he is abusive and threatening." [FN132] Yet the court proceeded to find by a preponderance of the evidence that the mother lacked "the insight and motivation to protect her children" [FN133] and terminated her parental rights.

*323 Again, the courts here do not acknowledge that a number of factors may influence a battered woman's decision to remain in an abusive relationship. A mother remaining in an abusive home may, as a result of pathology, be unable to leave or may have chosen to remain after weighing her options and considering the harm that may come to her children as a result.

In addition, courts often assume that a pattern of abuse will develop or persist and courts therefore refuse to credit battered women with real attempts they have made to protect themselves and their children. In In re Shane T., the court found the action taken by the mother to protect her son inadequate:
The respondent mother testified that she tried to keep peace in the marital home. And the Court does find thatshe attempted to dissuade her husband from continuing his verbal abuse of Shane. Despite this, the fact remains that she failed to protect her son from an ongoing, serious abuse. [FN134]

Even though the mother attempted to protect her son, the court still held that the mother abused her child and custody of the child was awarded to Social Services.

More extraordinarily, affirmative acts taken by a mother to leave her abuser may still be deemed inadequate by the court. [FN135] In 1980, the Supreme Court of Pennsylvania heard the appeal of an abused mother who, according to the record, seemed to do everything within her power to leave her abuser.
Appellant testified that she no longer lives with [the abuser] . . . She further testified that she has done everything within her power to stay away from him, but it is clear that she has not rid herself of him or his violence. . . . [The abuser] continues to follow her, threaten her and fight with her. He also has broken into her home on several occasions and has waited for her many times while she was out. Thus, despite her recognition of and asserted attempts to remedy the problem, she has not succeeded. Though appellant may have moved away from [the abuser] for the purpose of improving her *324 situation and regaining custody of her child, she clearly did not move far enough. [FN136]

The court upheld the termination of the mother's parental rights. The extraordinary feats described by the court were apparently inadequate for her to be considered a fit mother. Apparently the court determined that the severity of the father's abusive conduct outweighed the mother's sincere attempts to distance herself from the abuse. [FN137]

More recently, an Iowa court in In re J.S. acknowledged that the abused mother had taken "more control of her life: she ha[d] divorced her abusive husband and intend[ed] to keep him out of her life." [FN138] However, the court noted that "even though [the mother] states an intention to not be involved with [her ex-husband] in the future, she believes [her ex-husband] will continue to invade her life and, as a consequence, she fears for her children's emotional and physical safety." [FN139] Finding that the children may not be returned to their mother without facing risk of harm, the court terminated the mother's parental rights. [FN140] Again, the court acknowledged that the perpetrator of violence was the father, yet it devalued the mother's action to distance herself from the father's violent conduct.

E. Assuming a Pattern of Abuse

When battered women take steps to help themselves and their children, courts often deem the acts ineffective or minimal. Courts justify termination of parental rights based upon their expectation that the battered woman will either return to her abuser or will assume a pattern of pairing with abusive men. The court in In re B.W.S., noted earlier for failing to make the connection between the mother's deficient psychological state and abuse by her husband, later deemed this "psychological condition which precludes her from properly parenting the children" as unlikely to change in the future. [FN141] In In re Dawn C., the court established a pattern of abuse based on a mother who "exhibited a pattern of primarily relying on her two husbands; both of these individuals were physically and emotionally abusive." [FN142] Even *325 though the mother was pursuing a divorce from her abusive husband, the court relied on a psychiatric report in which it was "doubted that the mother was at a point where she could recognize and remain free of future abusive relationships." [FN143]

Courts disregard evidence of changes or improvements made by the abused mother in favor of focusing on past incidents of abuse at the hands of another. In In re Adoption of Paula, a mother contended that the trial court committed error in focusing solely on the condition of her home while she was still residing with the abusive father. She claimed that the court failed "to give adequate weight to evidence tending to prove that, since leaving the father, the mother had made gains in her readiness and ability to parent her children." [FN144] The Supreme Judicial Court of Massachusetts, however, disagreed and found the mother unfit based upon her prior inability to comprehend the abuse in her home and predicted that the mother "would be unable to protect her children in the future." [FN145]


In In re T.O., an Iowa court warned against "allow[ing] the needs of the children to yield to the tragic circumstances of a parent." [FN146] However, in assessing the best interests of the child, courts may fail to consider that the mother may indeed be acting in the child's best interest. A rationality standard would allow courts to take into consideration affirmative acts by the mother to protect her children. In such cases, the best interests of the child would be best served by allowing children to remain with their non-abusive parent.

The courts' reaction to the mother's plight depends largely on the model the court adopts. A distinction may be made based on a continuum along which the actions of each individual mother may be understood. If a battered woman were able to show that her reasons for remaining in the relationship were solely the product of rational decision-making, this would be the greatest case for acting in the best interest of both the child and the mother. In such a case, the mother is deemed to be protecting her child in the face of escalating violence and inadequate social resources. If a woman is truly doing the best *326 she can with what society has offered her, a mother in this situation should not have her parental rights terminated.

According to the pathological model, battered women may exhibit true deficiencies in parenting, and temporary psychological problems may preclude battered mothers from being proper parents. It is understandable how women become trapped in such relationships. However, because these women's parenting skills are deficient, and their children suffer as a result, their actions are harder to understand as being in the best interest of their children than are the actions of those women who are truly acting rationally in choosing to stay with their batterers.

Courts are more justified in terminating the mother's parental rights in a situation where evidence suggests that the mother truly has established a pattern of involvement with abusive men. In such circumstances, it is evident that even if the mother terminates her current abusive relationship, the children will continue to be at risk of harm if they continue to remain in her custody. Within a child protection perspective, such women seem to be contributing to the harm of their children and a number of courts provide descriptions of mothers who continue their relationships with abusive husbands and perpetuate a cycle of abuse by repeatedly cohabiting with abusive men. [FN147] Yet, these women remain somewhat deserving of understanding: literature on battered women may help courts to understand how women become trapped in a pattern of abuse and how society fails to offer resources adequate to truly break the cycle.

Child advocates note that "the rights of the parents should be abrogated only when there is compelling evidence that the child is at risk of harm while in the parent's care." [FN148] Children of battered women indeed may be at risk of harm when they are with their mothers. However, their mothers are not guilty of abuse and often act to prevent abuse of their children. Implementation of a rationality standard will allow courts to reflect on the ways a mother has acted affirmatively to protect her children. Such a standard will better serve to protect mothers' parental rights and to provide for the best interest *327 of the children: such a standard allows children to remain with the non-abusive parent. [FN149]


However much sympathy one might have for the plight of battered women, the reality is that their children are being negatively impacted. Battered women often exhibit true deficiencies in parenting which adversely affect children in the home. Courts remain singularly focused on the well-being of the children. Accordingly, courts frequently rely on the manifestations of battered woman's syndrome (thus assuming a pathological model) as evidence of parental unfitness. Courts rely on the fact that the mother's inability to discontinue her abusive relationship may result in her children becoming trapped in the battering household. If a mother continues to pursue such a violent relationship without seeking professional intervention, it is likely that her children will continue to be abused. This is precisely what courts are trying to prevent.

As demonstrated above, there are social barriers that may serve to keep battered women in abusive relationships. Court-mandated protective orders, offered as a means to protect women trying to escape battering relationships, often serve only to intensify the violence against the mother and her children. [FN150] Upon leaving her home, a battered woman may have few, if any, financial resources. [FN151] As a result, she will likely turn to a battered women's shelter for assistance in transitioning away from her batterer and into a more independent lifestyle. However, shelters are often lacking in space or impose limits on women's stays such as turning away women with children. [FN152] Finally, if women attempt to get help for their children, they risk exposing the existence of abuse to the authorities. [FN153] Consequently, the mother faces a real risk of losing custody of her children to social services due to a perceived failure to protect the children from abuse. *328 As a result, although battered women may have a desire to leave, practical concerns may keep them in their abusive relationships.

Nevertheless, researchers have found that a battered woman's psychological problems will largely go away if she is able to leave her abuser. Such a woman will be unlikely to get involved with another batterer. [FN154] Therefore, "the best way to make children safe is to make their mothers safe." [FN155] Providing adequate resources is crucial to the protection of the rights of mothers and the interests of children. Until society offers additional resources for battered women which are sufficient to help them achieve full separation from their abusive spouses, courts must give some weight to affirmative acts taken by the mother to protect her children before parental rights are terminated.

[FNa1]. B.A. 1995, J.D. 1998 University of Southern California. I would like to thank Professor Thomas Lyon for his suggestions and guidance. I would also like to thank Amy Johnson and Dorine Lawrence-Hughes for their exceptional efforts.

[FN1]. See Debra F. Kromsky & Brian L. Cutler, The Admissibility of Expert Testimony on the Battered-Woman Syndrome, in Abused and Battered: Social and Legal Responses To Family Violence 101 (Dean D. Knudsen & JoAnn L. Miller eds., 1991). Kromsky and Cutler conducted a study designed to elicit opinions regarding battered woman syndrome. A questionnaire was distributed among prospective jurors, law enforcement personnel and members of the legal community. They found that "prospective jurors are knowledgeable about some issues ..."; "police knowledge of battered-woman syndrome is comparable to that of the prospective jurors"; and that "attorneys, on average, show more knowledge of the battered woman syndrome than the prospective jurors and police." Id. at 107-08.

[FN2]. See Lenore E. Walker, The Battered Woman Syndrome (1984) [hereinafter The Battered Woman Syndrome].

[FN3]. See id. at 59 (finding 53% of the wife batterers studied have alsobattered their children); see also Evan Stark & Anne H. Flitcraft, Women and Children at Risk: A Feminist Perspective on Child Abuse, 18 Int'l J. Health Services 97, 106, 115 (1988) (finding that nearly 50% of children of abused mothers were themselves abused by their mother's batterer).

[FN4]. See State Attorney General's Office, Report on Domestic Violence: A Commitment to Action, 28 New Engl. L. Rev 313, 373 (1993).

[FN5]. "[P]eople who normally view abused children and battered women as deserving of help, rather than punishment, change their attitude when that battered woman is also a mother." Id. Commonly, mothers are ultimately held accountable when any harm comes to their children. In order to determine the extent of one community's bias against two parents prosecuted for the death of their infant son, researchers conducted a survey and found that mothers are largely held to be solely responsible for the health and well-being of their children. Neil Vidmar & Julius Melnitzer, Juror Prejudice: An Empirical Study of a Challenge for Cause, 22 Osgoode Hall L.J. 487 (1984). One survey question "asked whether the respondent was inclined to think that 'both the father and mother are equally guilty, that the mother is probably more guilty than the father, or that the father is probably more guilty than the mother?"' Id. at 496. Those responding to this question "spontaneously said that in their opinion a mother was absolutely responsible for the welfare of her child and she must be considered responsible even if she did not actually kill the child." Id.

[FN6]. See, e.g., V. Pualani Enos, Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children, 19 Harv. Women's L.J. 229 (1996).

[FN7]. See Linda J. Panko, Legal Backlash: The Expanding Liability of Women Who Fail to Protect Their Children From Their Male Partner's Abuse, 6 Hastings Women's L.J. 67, 70 (1995).

[FN8]. See, e.g., Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041 (1991). Note that a number of states require evidence of domestic violence to be taken into consideration in custody decisions. The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 Fam. L.Q. 197, 199, 225 (1995) [hereinafter Family Violence Project].

[FN9]. See, e.g., Jill A. Phillips, Re-Victimized Battered Women: Termination of Parental Rights For Failure to Protect Children From Child Abuse, 38 Wayne L. Rev. 1549 (1992) (Comment).

[FN10]. See, e.g., Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, 2 U. Chi. L. Sch. Roundtable 1, 11 (1995) (suggesting that any effort to remove abused children from homes where their mothers are battered must include a duty to ensure that the victimized parent and children are provided with a safe environment); Enos, supra note 6, at 268 (suggesting that knowledge regarding the relationship between domestic violence and child abuse is crucial for increasing protection for battered women and their children through the courts and the policies of Child Protective Services); Kristian Miccio, In the Name of Mothers and Children: Deconstructing the Myth of the Passive Battered Mother and the "Protected Child" in Child Neglect Proceedings, 58 Alb. L. Rev. 1087, 1105-06 (1995) (suggesting a standard in child protection actions which takes into account the nature of the mother's abuse and her actions to protect her children within the context of her abusive environment); Panko, supra note 7, at 88 (suggesting that one of the reasons that "failure to protect" laws fail is that the laws ignore the "daily oppression and struggle in the lives of battered mothers"); Phillips, supra note 9, at 1578 (suggesting the need for the court system to "educate itself about family violence.").

[FN11]. A number of writers advocate that courts take intoconsideration the realities of spouse abuse. See, e.g., Miccio, supra note 10, at 1105-06; Phillips, supra note 9, at 1577. Commentators note the societal norms that put "the full burden of protecting children ... on the shoulders of mothers." Miccio, supra note 10, at 1106. As a result of such cultural beliefs, "failure-to-protect laws have a disparate impact on women." Panko, supra note 7, at 68. These laws tend to "punish[ ] mothers and fail[ ] to protect children from abusive fathers." Miccio, supra note 10, at 1088.

[FN12]. See Dohrn, supra note 10, at 11; Enos, supra note 6, at 267-68.

[FN13]. See In re Katherine C., 471 N.Y.S.2d 216, 218 (Fam. Ct. 1984) (noting that "[g]ood faith, good intentions, and even best efforts, are not ... defenses to a child protective petition.").

[FN14]. The notion of the intersection of the needs of battered women and their abused children has not been addressed in recent legal commentary. Mary E. Becker asserts that "bias against mothers cannot preclude maternal responsibility unless we are willing to ignore harm to children ... as a remedy for systematic biases in our culture." Mary E. Becker, Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability for Acts of Others 2 U. Chi. L. Sch. Roundtable 13, 22 (1995). In addition, a participant in a Massachusetts discussion group convened by the State Attorney General to examine issues of domestic violence declared that they would be unable to "separate the best interests of children from the best interests of their mothers. Any successful program ... must account for the effects of violence--not only on the children, but on women, as well." State Attorney General's Office, supra note 4, at 374.

[FN15]. See Enos, supra note 6, at 237.

[FN16]. Becker, supra note 14, at 20. The scope of this Article includes discussion only of the final stage in a dependency action--the termination of parental rights. Dependency jurisdiction typically begins with the temporary removal of the children from the home, then, prior to the permanent termination of parental rights, attempts to rehabilitate and reunify are made. For a discussion of the termination of battered women's parental rights within the context of all stages of dependency jurisdiction, see Thomas D. Lyon, Are Battered Women Bad Mothers? Rethinking the Termination of Abused Women's Parental Rights, in Neglected Children: Research, Practice, & Policy (H. Dubowitz ed., forthcoming 1998).

[FN17]. See Becker, supra note 14, at 14.

[FN18]. See id. at 14-15 (citing Dohrn, supra note 10, at 7).

[FN19]. Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Meyer v. Nebraska, 262 U.S. 390 (1923) are the foundational cases in which the Supreme Court deemed such a right to be a fundamental substantive right of the Fourteenth Amendment. The Court has recognized that "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents ... parents retain a vital interest in preventing the irretrievable destruction of their family life." Santosky v. Kramer, 455 U.S. 745, 753 (1982).

[FN20]. The Supreme Court has defined termination as denying "the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child." Santosky, 455 U.S. at 749.

[FN21]. See infra text accompanying notes 24-92.

[FN22]. See infra text accompanying notes 93-150.

[FN23]. See infra text accompanying notes 30-32.

[FN24]. See infra text accompanying notes 33-38.

[FN25]. This model has been described as "tend[ing] to depict battered women as unreasonable." A. Rennee Callahan, Will the 'Real' Battered Woman Please Stand Up? In Search of A Realistic Legal Definition of Battered Woman Syndrome, 3 Am. U. J. Gender & L. 117, 150 n.194 (Fall 1994). Psychology has historically been used to characterize women as abnormal or irrational. See generally Barbara Ehrenreich & Deidre English, Complaint and Disorders: The Sexual Politics of Sickness (1973) (describing the role the medical system has played in maintaining women's oppression); Jeffrey Moussaieff Masson, A Dark Science: Women, Sexuality, and Psychiatry in the Nineteenth Century 3 (Jeffrey Moussaieff Masson ed., 1986) (Jeffrey Moussaieff Masson & Marianne Loring, trans.) (presenting Nineteenth Century medical journal articles to demonstrate how male medical professionals used their power "to warp, damage, inhibit, and even destroy the women's sexual (and sometimes emotional and physical) selves").

[FN26]. Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 35 (1989) [hereinafter Terrifying Love].

[FN27]. Battered women in Walker's study were found to maintain a number of common traits. Walker lists what she has found to be characteristics common among battered women: she "has low self-esteem"; she "strongly believes in family unity and the prescribed feminine sex-role stereotype"; she "accepts responsibility for the batterer's actions"; she "[s]uffers from guilt"; she has "severe stress reactions, with psychological complaints"; and she "believes that no one will be able to help her resolve her predicament except herself." Lenore E. Walker, The Battered Woman 31 (1979) [hereinafter The Battered Woman].

[FN28]. See Terrifying Love, supra note 25, at 102-03.

[FN29]. See The Battered Woman, supra note 26, at 32.

[FN30]. Id. at 34-35. Psychological complaints of battered women include "depression, anxiety, and general suspiciousness." Such manifestations can be seen as survival techniques that enable battered women to survive in such a relationship. However, when "taken out of context by unenlightened medical and mental health worker," these manifestations have been misdiagnosed to be schizophrenia, paranoia, and severe depression. Id. at 35, 21.

[FN31]. Id. at 42, 47. Some feminist critics of Lenore Walker's theory of learned helplessness such as Elizabeth Schneider suggest that "expert testimony on battered woman syndrome resound with the very sex-stereotypes of female incapacity which women's self-defense work has sought to overcome." Elizabeth M. Schneider, Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering, 9 Women's Rts. L. Rep. 195, 197 (1986). Schneider notes that "[t]he notion of battered woman syndrome contains the seeds of old stereotypes of women in new form--the victimized and the passive battered woman, too paralyzed to act because of her own incapacity." Id. at 216 (footnote omitted). Although evidence on battered woman syndrome was originally presented in order to dispel stereotypes regarding battered women, the testimony that is being offered "goes to the other extreme of depicting battered women as helpless victims and fails to describe the complexity and reasonableness of why battered women act." Id. at 199. Schneider advocates a new focus on both the individual experiences of each battered woman and on the reasonableness of her behavior. Id. at 222.

[FN32]. Id. at 49-50.

[FN33]. See The Battered Woman Syndrome, supra note 2, at 23.

[FN34]. Don Dutton & Susan Lee Painter, Traumatic Bonding: The Development of Emotional Attachments in Battered Women and Other Relationships of Intermittent Abuse, 6 Victimology 139, 146 (1981).

[FN35]. See id. at 146-47. Such bonds are commonly noted between hostages and their captors and between cult members and their charismatic leaders.

[FN36]. Id. at 147.

[FN37]. See id. at 148.

[FN38]. Donald G. Dutton & Susan K. Golant, The Batterer: A Psychological Profile 57 (1995).

[FN39]. See Dutton & Painter, supra note 33, at 151.

[FN40]. See id. at 171.

[FN41]. See Dutton & Golant, supra note 37, at 57.

[FN42]. Terrifying Love, supra note 25, at 180.

[FN43]. Id.

[FN44]. Terrifying Love, supra note 25, at 170.

[FN45]. See id. "Battered Women's survival behaviors have often earned them the misdiagnosis of being crazy. Unusual actions which may help them to survive in the battering relationship have been taken out of context by unenlightened medical and mental health workers. Several ... women ... reported being hospitalized for schizophrenia, paranoia, and severe depression." The Battered Woman, supra note 26, at 21.

[FN46]. The Battered Woman, supra note 26, at 28.

[FN47]. See The Battered Woman Syndrome, supra note 2, at 148; see also Terrifying Love, supra note 25, at 7.

[FN48]. See Michael J. Strube, The Decision to Leave an Abusive Relationship: Empirical Evidence and Theoretical Issues, 104 Psychol. Bull. 236, 246 (1988).

[FN49]. See id. at 247.

[FN50]. Angela Browne, When Battered Women Kill 126 (1987).

[FN51]. Joan Bilinkoff, Empowering Battered Women as Mothers, in Ending the Cycle of Violence: Community Responses to Children of Battered Women 97, 97 (Einat Peled et al. eds., 1995) (citing A. Henderson, Children of Abused Wives: Their Influence on their Mother's Decisions, 88 Canada's Mental Health 10 (1990); N.Z. Hilton, Battered Women's Concerns About Their Children Witnessing Wife Assault, 7 J. Interpersonal Violence 77 (1992)).

[FN52]. Lewis Okun, Woman Abuse 94 (1986).

[FN53]. See Bilinkoff, supra note 51, at 97.

[FN54]. See Browne, supra note 50, at 115.

[FN55]. The Battered Woman Syndrome, supra note 2, at 24.

[FN56]. Browne, supra note 50, at 113.

[FN57]. Id. at 114.

[FN58]. See Terrifying Love, supra note 25, at 151.

[FN59]. See In re S.D.S., 648 S.W.2d 351, 354 (Tex. App. 1983, writ ref'd n.r.e.) (Jordan, J., dissenting).

[FN60]. Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 71-72 (1991).

[FN61]. Browne, supra note 50, at 114.

[FN62]. Mahoney, supra note 61, at 65.

[FN63]. Separation assault is the attack on the woman's body and volition in which her partner seeks to prevent her from leaving, retaliate for the separation, or force her to return. It aims at overbearing her will as to where and with whom she will live, and coercing her in order to enforce connection in a relationship. It is an attempt to gain, retain, or regain power in a relationship, or to punish the woman for ending the relationship.
Id. at 65-66 (emphasis omitted).

[FN64]. Edward S. Snyder, Remedies for Domestic Violence: A Continuing Challenge, 12 J. Am. Acad. Matrimonial L. 335, 346-47 (1994).

[FN65]. Peter Finn, Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Abuse, 23 Fam. L.Q. 43, 45 (1989). "Any abuser who is absolutely determined to batter or kill his partner will not be deterred by a piece of paper ordering him not to." Id. However, "having learned of the dangers to children when women are battered, child protective services in many states are seeking power to remove the battered woman's child if she fails to get a protective order against her assailant." Stark & Flitcraft, supra note 3, at 113. Thus, once again, battered women find themselves in a no win situation.

[FN66]. The sexist division of labor in society assigns child-rearing responsibility to wives/women. This keeps them in a dependent and less powerful position if they bear children.... Women who have worked as housewives rearing children are at a disadvantage in terms of seniority and occupational skills when they try to enter the paid-labor market.
Okun, supra note 52, at 94.

[FN67]. Id. at 101.

[FN68]. Id.

[FN69]. See id. at 224-25.

[FN70]. See State Attorney General's Office, supra note 4, at 337.

[FN71]. See id. at 362.

[FN72]. See Browne, supra note 50, at 111.

[FN73]. See State Attorney General's Office, supra note 4, at 362.

[FN74]. Becker, supra note 14, at 31.

[FN75]. Dohrn, supra note 10, at 10.

[FN76]. See Cahn, supra note 8, at 1051. A court in Indiana noted that the children were taken into custody while the mother was residing in a battered woman's shelter. See In re Y.D.R., 567 N.E.2d 872, 873 (Ind. Ct. App. 1991).

[FN77]. Family Violence Project, supra note 8, at 217 n.90.

[FN78]. Daniel G. Saunders, Child Custody Decisions in Families Experiencing Woman Abuse, 39 Social Work 51, 56 (1994) (quoting L. Fredericks, Minnesota Supreme Court Creates Primary Caretaker Presumption in Child Custody Disputes, 7 Women's Advocate 1, 2 (1986)).

[FN79]. Laura Crites & Donna Coker, What Therapists See That Judges May Miss, 27 Judges J. 9, 40 (Spring 1988).

[FN80]. See The Battered Woman Syndrome, supra note 2, at 35, 60.

[FN81]. Id.

[FN82]. Id. at 145.

[FN83]. "[B]attered women seeking safe shelter and other services seldom arrive alone. They often are followed through the shelter or agency door by their children." Einat Peled & Jeffrey L. Edleson, Process and Outcome in Small Groups for Children of Battered Women, in Ending the Cycle of Violence: Community Responses to Children of Battered Women 74, 77 (Einat Peled et al. eds., 1995).

[FN84]. See Honore M. Hughes & Michele Marshall, Advocacy for Children of Battered Women, in Ending the Cycle of Violence: Community Responses to Children of Battered Women 121, 136 (Einat Peled et al. eds., 1995). Some writers have noted the double bind this presents for women's advocates and note that "advocates for battered women have ... been instrumental in thwarting Child Protection Services from involvement in the area of woman abuse." Carole Echlin & Larry Marshall, Child Protection Services for Children of Battered Women: Practice Controversy, in Ending the Cycle of Violence: Community Responses to Children of Battered Women 170, 180 (Einat Peled et al. eds., 1995).

[FN85]. Echlin & Marshall, supra note 84, at 180.

[FN86]. Callahan, supra note 24, at 150.

[FN87]. Donald C. Bross, An Introduction to Child Representation, in Foundations of Child Advocacy: Legal Representation of the Maltreated Child 85, 93 (Donald C. Bross & Laura Freeman Michaels eds., 1987).

[FN88]. Id. at 75.

[FN89]. See, e.g., In re Dawn C., No. L-93-265, 1994 WL 506141, at *4 (Ohio Ct. App. 6 Dist. Sept. 16, 1994); In re Tonya Purvis, No. CA91-07-128, 1992 WL 158394, at *1 (Ohio Ct. App. 12 Dist. July 6, 1992).

[FN90]. In re S.O., 483 N.W.2d 602, 603 (Iowa 1992) (citing Iowa Code § 232.116(2) (1991)).

[FN91]. In re B.W.S., Nos. C9-95-20,CX-95,12, 1995 WL 351690, at *2 (Minn. Ct. App. June 13, 1995) (citing In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990)).

[FN92]. "Within the framework of parens patriae (the protector of subjects unable to protect themselves) and loco parentis (the power to stand in the place of the parents), the state has the authority to act in the best interest of and for the protection of children." Echlin & Marshall, supra note 84, at 171.

[FN93]. As noted above, child abuse often goes hand in hand with spousal abuse. See supra note 3 and accompanying text.

[FN94]. See, e.g., In re Shane T., 453 N.Y.S.2d 590, 593 n.4 (Fam. Ct. 1982).

[FN95]. See, e.g., In re S.D.S., 648 S.W.2d 351, 354 (Tex. App. 1983, writ ref'd n.r.e.) (Jordan, J., dissenting).

[FN96]. Shane T., 453 N.Y.S.2d at 593.

[FN97]. Id. at 593 n.4.

[FN98]. S.D.S., 648 S.W.2d at 352.

[FN99]. Id. at 353.

[FN100]. Id. at 354 (Jordan, J., dissenting).

[FN101]. Id.

[FN102]. In fact, the mother did seek outside help in these case. However, the court says that her concern was "untimely," Id. at 353. "[B]y the time she took action to help the children, they had already suffered too much." Id.

[FN103]. No. CA91-07-128, 1992 WL 158394, at *1 (Ohio Ct. App. July 6, 1992).

[FN104]. Id.

[FN105]. Nos.C9-95-20, CX-95-12, 1995 WL 351690, at *2 (Minn. Ct. App. July 13, 1995).

[FN106]. See id. at *3.

[FN107]. Id. at *4.

[FN108]. See id. at *3 n.3.

[FN109]. See supra text accompanying notes 39-47.

[FN110]. 653 A.2d 777, 779 (Vt. 1994).

[FN111]. Id.

[FN112]. In re L.B., 530 N.W.2d 465, 467 (Iowa Ct. App. 1995) (emphasis added).

[FN113]. Id.

[FN114]. Id. at 468.

[FN115]. Id.

[FN116]. See id. (citing In re H.R.K, 433 N.W.2d 46, 50 (Iowa Ct. App. 1988)). Not all courts are unsympathetic to the difficulty battered women have in facing the reality of their situation, as well as that of their children. A Pennsylvania court, in reversing an adjudication of dependency resulting from incidents of sexual abuse perpetrated by the father, noted:
The worst that can be said of her conduct is that when the children began to accuse their father of abusing them sexually, she was confused and hesitant in believing that her husband would do such a thing. After her husband had pleaded guilty to criminal charges, however, she was prepared to accept fully her allegiance to her children and her responsibility for their care and control.
In re Jeffrey S., 628 A.2d 439, 440 (Pa. Super. Ct. 1993).

[FN117]. 646 A.2d 1284, 1287 (Vt. 1994).

[FN118]. See supra text accompanying notes 25-32, 39-47.

[FN119]. See id.

[FN120]. State Attorney General's Office, supra note 4, at 370.

[FN121]. Okun, supra note 52, at 204.

[FN122]. Terrifying Love, supra note 25, at 138.

[FN123]. 424 N.E.2d 1226 (Ill. App. Ct. 1981).

[FN124]. See id. at 1228.

[FN125]. Id.

[FN126]. Id.

[FN127]. Id. at 1229. The abused mother "also stated ... that her husband had threatened the children and had held a gun to the heads of both of them, that he had hit [one child] in the mouth and that he had tried to run over another child because [she] was trying to take the child away." Id.

[FN128]. Id. at 1231. The court asserted that termination was necessary due to the fact that the negligence statute required the court to "focus on the child's environment in order to determine if the child is receiving the necessary care." In a household with an abusive father, the court reasoned, a child was not safe from harm. Id.

[FN129]. 471 N.Y.S.2d 216, 219-20 (Fam. Ct. 1984).

[FN130]. In re C.P., 455 N.W.2d 138, 145 (Neb. 1990).

[FN131]. 548 N.W.2d 348 (Neb. Ct. App. 1996).

[FN132]. Id. at 359.

[FN133]. Id. at 360.

[FN134]. 453 N.Y.S.2d 590, 594 (Fam. Ct. 1982).

[FN135]. But see In re Sunshine Allah V., 450 N.Y.S.2d 520 (App. Div. 1982) in which a New York court notes what the mother did right and directs the return of the child to the custody of his mother. The court maintained that "the mother has obtained an order of protection against the father and has not seen him in two years. She indicated that if he returned she would call her family and the police." Id. at 522. The court noted that the mother "did not inflict the physical abuse upon the child ... and she was not adjudged guilty of abuse." Id. at 521-22. The court thus found unsupported the argument that violence would occur with the mother's present partner. Id. at 522.

[FN136]. In re D.K.W., 415 A.2d 69, 72 (Pa. 1980).

[FN137]. This reasoning reaffirms the societal belief that mother is the ultimate caretaker and protector. See supra note 5 and accompanying text.

[FN138]. 470 N.W.2d 48, 50 (Iowa 1991).

[FN139]. Id.

[FN140]. See id. at 52.

[FN141]. Nos. C9-95-20, CX-95-12, 1995 WL 351690, at *4 (Minn. Ct. App. June 13, 1995).

[FN142]. No. L-93-265, 1994 WL 506141, at *1 (Ohio Ct. App. Sept. 16, 1994).

[FN143]. Id.

[FN144]. In re Adoption of Paula, 651 N.E.2d 1222, 1231 (Mass. 1995).

[FN145]. Id.

[FN146]. In re T.O., 470 N.W.2d 8, 12 (Iowa 1991) (Harris, J., dissenting).

[FN147]. See, e.g., In re S.O., 483 N.W.2d 602, 603 (Iowa 1992); In re C.D.C., 233 N.W.2d 801, 807 (Neb. 1990).

[FN148]. Echlin & Marshall, supra note 84, at 172.

[FN149]. "There is a strong presumption that the children's best interest is usually served by keeping them with their natural parents." Strict adherence to this "family preservation model" could result in the child remaining in the home with an abusive father. "Courts must acknowledge the importance of keeping biological families together and incorporate this value into their decisions." Such a model should accordingly be utilized to ensure that "all nonabusive family members remain together and safe, away from their batterer." State Attorney General's Office, supra note 4, at 371.

[FN150]. See supra text accompanying notes 53-67.

[FN151]. See supra text accompanying notes 68-72.

[FN152]. See supra text accompanying notes 73-80.

[FN153]. See supra text accompanying notes 81-92.

[FN154]. See supra text accompanying notes 38-46.

[FN155]. Dohrn, supra note 10, at 8.