Ruling May Help New York’s Battered Mothers Keep Their Children
Oct 28, 2004
The New York State Court of Appeals ruled unanimously on Tuesday that the child welfare system cannot remove children from non-abusive parents simply because there is domestic violence in the home. The ruling is considered a victory for victims of abuse, and may have an impact beyond New York because it is one of the first rulings on this complex issue.
A federal appeals court that is considering a class action case brought by battered mothers and their children against New York City’s child protection agency had asked the state court to answer three questions regarding how the state’s laws affect child protection proceedings. The answers, which comprise Tuesday’s ruling, all support federal court rulings to date in Sharwline Nicholson vs. Nicholas Scoppetta et al, which find that removing children from homes in which domestic violence is occurring violates the rights of battered mothers.
Tuesday’s seven to zero ruling by Chief Judge Judith Kaye says, in part, “Exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment … In many instances, removal of the child may do more harm than good.”
The decision also concludes that, “a blanket presumption favoring removal of the child was never intended” by the state. Before removing children from non-abusive parents, authorities must exhaust alternatives, balance the risk of leaving children in violent homes against the trauma caused by separating the child from a nonviolent parent, and show in family court that there is an imminent threat to the child’s health and welfare.
Jill Zuccardy, who represented the battered mothers in the federal lawsuit, told the New York Times that the federal court rulings coupled with yesterday’s state court ruling are a wake-up call for child welfare agencies nationwide. “It says you’d better listen to domestic violence agencies or you will wind up being sued,” she said.
“How to act in the best interests of battered mothers and their children is one of the toughest issues facing our court system today,” said Family Violence Prevention Fund President Esta Soler. “We need to do a much better job of ensuring that battered mothers and their children are treated fairly, and that courts rule in ways that will both protect children and allow them to remain with non-abusive parents. This ruling is an important step in the right direction.”
With the state court ruling in hand, the United States Circuit Court of Appeals for the Second District may rule at any time to resolve the case.
The ruling is available at www.courts.state.ny.us/ctapps/decisions/oct04/113opn04.pdf