An Obligation to Protect

What parents need to know about domestic violence and child welfare law

In 1999, New York City’s foster care system removed Sharwline Nicholson’s
children solely because she was a victim of domestic violence. One night
Nicholson’s ex-boyfriend showed up at her house and assaulted her when she opened the door. While she was in the hospital, the city’s Administration for Children’s Services (ACS) took her children from a neighbor’s home and charged her with “engaging in domestic violence.”

Nicholson became the lead plaintiff in a class action suit against the New York City foster care system aimed at stopping the practice of removing children from victims of domestic violence solely because the parent had been abused. They won the case. ACS had to change how it handles cases involving domestic violence.

Jill Zuccardy, one of Nicholson’s lawyers, explains what parents need to know about domestic violence and child welfare law:

Q: How have the New York City child welfare system’s policies on domestic violence changed?
A: The most important change is that ACS can’t, as a matter of policy, remove children from victims of domestic violence solely because they’re victims. Obviously, that doesn’t mean that it never happens. Some caseworkers make threats of removal inappropriately, but now it’s the exception and it’s against the law. As a result of the lawsuit, a committee of experts reviewed changes in the child welfare system’s policies and training, and the agency directed more staff and funding to domestic violence programs and improved training. Since the lawsuit, it seems
as though there is more of an institutional commitment to work with
victims of domestic violence and to get them the help that they want or need.

Q: How do caseworkers decide whether to remove a child in a case involving domestic violence?
A: All parents have a duty to take steps to protect their children from harm. Research shows that about half of male batterers also frequently abuse their children, and women who have been hit by their husbands are twice as likely to hit a child. If, in addition to witnessing violence, your children are being neglected or physically or sexually abused, they can be removed.

In considering whether to remove children when a case involves only domestic violence, the caseworkers and courts must look at specific evidence as to whether the child is being harmed. For instance: Is that child suffering emotional harm? Is that child scared or having nightmares? And, most importantly, is there a risk that the child is going to be harmed, even just by accidentally being caught in the middle of a fight?

Children can still be removed if the violence is repeated and serious, and the children are clearly suffering serious emotional harm or the risk of physical harm, and if the mother is offered meaningful help and decides not to take it.

The batterer parent can be charged with “child neglect” meaning that he did not protect his child from violence or the threat of violence.

Q: How should an investigation proceed?
A: Caseworkers have to hold the abuser accountable, listen to the victim about what she needs, and offer services to the victim in order to reduce the danger to the victim and child.

Caseworkers and the courts can’t assume the mother must take specific steps such as leaving her partner, taking out an order of protection or prosecuting, or going into a shelter as a condition of keeping her children. However, they can expect the mother to take steps to protect her children. For instance, a caseworker may suggest going to a shelter, while the mother would prefer moving to a relative’s where the children will be safe, and she can do that.

Or, the mother may stay in her own home—like Sharwline Nicholson did—because she knows that the batterer is not coming back.

In cases where the children are removed, both the batterer and victim should be given case plans and offered services to help them reunify with their children.

Q: Should parents seek legal advice?
A: You should seek out legal advice if your child is at risk of removal. When I’m working with a domestic violence victim, helping her make a decision about what to do is the hardest part. I can’t predict what a caseworker or judge is going to perceive. The law uses phrases like “reasonable efforts” and “minimum degree of care” and those are terms that are open to interpretation. The reality is, a lawyer can tell you your rights, but at the end of the day, if you’re living with an abusive partner, you are taking a risk.

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