Do No Harm: An Analysis of the Legal and Social Consequences of Child Visitation Determinations for Incarcerated Perpetrators of Extreme Acts of Violence against Women


DO NO HARM: AN ANALYSIS OF THE LEGAL
AND SOCIAL CONSEQUENCES OF CHILD
VISITATION DETERMINATIONS FOR
INCARCERATED PERPETRATORS OF
EXTREME ACTS OF VIOLENCE AGAINST
WOMEN

DANA HARRINGTON CONNER*

When the events are natural disasters or "acts of God," those who
bear witness sympathize readily with the victim. But when the
traumatic events are of human design, those who bear witness are
caught in the conflict between victim and perpetrator. It is morally
impossible to remain neutral in this conflict. The bystander is
forced to take sides. 1

It is very tempting to take the side of the perpetrator. All the
perpetrator asks is that the bystander do nothing. He appeals to the
universal desire to see, hear and speak no evil. The victim, on the
contrary, asks the bystander to share the burden ofpain. The victim
demands action, engagement, and remembering.2

The right of an individual in the "care, custody, and management ' 3

of his or her children is one of the interests that "form the core of our

* Associate Professor of Law and Director of the Delaware Civil Clinic, Widener

University School of Law. I would like to express my appreciation to Leigh Goodmark,
Associate Professor, University of Baltimore School of Law, for her willingness to read this
article in draft and for her many helpful comments and suggestions. I thank the Honorable
Alan N. Cooper, Associate Judge of the Delaware Family Court, for his thoughts and
constructive comments to this article. To my research assistant, Lauren Klemmer, I am
grateful for her enthusiasm, dedication, and exceptional research. I would also like to thank
Amanda Schwartz of the Columbia Journal of Gender and Law for her insight, thoughtful
observations, and thorough work throughout the editing process.

1 JUDITH LEWIs HERMAN, TRAUMA AND RECOVERY 7 (1992).

21d. at 7-8.

3 Santosky v. Kramer, 455 U.S. 745, 753 (1982) ("The fundamental liberty interest
of natural parents in the care, custody, and management of their child does not evaporate



164 Columbia Journal of Gender and Law [Vol. 17:2

definition of 'liberty. ''4 The Supreme Court of the United States has held
consistently that the liberty interest guaranteed by the Due Process Clause
of the Fourteenth Amendment includes an individual's right to raise his or
her children.5 Directly connected to this liberty interest in rearing one's
children is a parent's freedom from government interference. Legal scholars
and students of the law have expanded upon this reasoning to argue in
support of incarcerated parents' interest in a continuing relationship with
their children-specifically, an entitlement to prison visitation.6 Unlike the
recognized parental liberty right in rearing one's child, a parent's right to
visitation remains the subject of open debate.7

simply because they have not been model parents or have lost temporary custody of their
child to the State.").

4 Michael H. v. Gerald D., 491 U.S. 110, 139 (1989) (Brennan, J., dissenting); see
also Santosky, 455 U.S. at 753.

5 Troxel v. Granville, 530 U.S. 57, 65 (2000). The Court, in addressing the issue of
grandparent visitation, described the fundamental rights of parents:

The liberty interest at issue in this case-the interest of parents in the
care, custody, and control of their children-is perhaps the oldest of the
fundamental liberty interests recognized by this Court. More than 75
years ago, in Meyer v. Nebraska .... we held that the "liberty" protected
by the Due Process Clause includes the right of parents to "establish a
home and bring up children" and "to control the education of their own."
Two years later, in Pierce v. Society of Sisters .... we again held that the
"liberty of parents and guardians" includes the right "to direct the
upbringing and education of children under their control." . . . We
returned to the subject in Prince v. Massachusetts . . . and again
confirmed that there is a constitutional dimension to the right of parents
to direct the upbringing of their children. "It is cardinal with us that the
custody, care and nurture of the child reside first in the parents .... "

Id. at 65-66 (citations omitted). The Court referred to a number of other decisions supporting
the constitutional protections afforded to parents. Id. at 66; see Stanley v. Illinois, 405 U.S.
645, 651 (1972); Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Parham v. J. R., 442 U.S.
584, 602 (1979); Santosky, 455 U.S. at 753.

6 Although some have suggested that prison visitation is a parental right, this

Article argues that a parent's desire to exercise prison visitation is one of many interests, not
rights, to be considered; an interest which must yield in some cases to the protection of
children and battered women. For a general consideration of the rights and interests of
incarcerated parents to visit with their children see infra Part III.

7 See David D. Meyer, The Constitutional Rights of Non-Custodial Parents, 34
HOFSTRA L. REv. 1461, 1480 (2006) (maintaining that "[s]ome judges have recognized, at
least in passing, a fundamental right of non-custodial parents to some visitation with their
children-so that a court's complete denial of access would trigger constitutional scrutiny as



2008] Do No Harm 165

Courts have found that imprisonment alone is an insufficient basis
upon which to deny a parent continued contact with his or her child.8 At the
same time, courts also suggest that incarceration does not create an
automatic right to visitation. 9 While research suggests prison visitation can
benefit parent-child bonding, which is essential to the healthy development
of children, 0 it also indicates that the nature of the parent-child bond is a
significant factor to be considered in determining visitation rights.11

Childhood trauma associated with exposure to severe acts of
violence against a parent' 2 and the way that exposure shapes bonding

tantamount to a termination of parental rights"); Margaret Tortorella, When Supervised
Visitation Is in the Best Interest of the Child, 30 FAM. L.Q. 199, 201, 210 (1996) (considering
the tension between a parent's right to visitation and the obligation to protect children).

8 E.g., Trombley v. Trombley, 754 N.Y.S.2d 100 (App. Div. 2003); Beverly v.

Bredice, 751 N.Y.S.2d 79, 80 (App. Div. 2002); Evelyn "ZZ" v. Randy "K", 692 N.Y.S.2d
804, 806 (App. Div. 1999); Lonobile v. Betkowski, 689 N.Y.S.2d 790, 790 (App. Div.
1999); Buffin v. Mosley, 695 N.Y.S.2d 442, 442 (App. Div. 1999); Rhynes v. Rhynes, 662
N.Y.S.2d 667, 667 (App. Div. 1997).

9 E.g., Easley v. Sims, 719 N.E.2d 1166, 1167 (Ill. App. Ct. 1999); Moore v.
Moore, No. 04CAA 111, 2003 WL 1924346, at *1 (Ohio Ct. App. 5 Dist. Aug. 11, 2005)
(suggesting incarceration is an extraordinary circumstance which effects the visitation
interests of the parent seeking contact); Winter v. Charles, 608 A.2d 731 (Del. 1992) (stating
although visitation is an important right, it is not absolute); Casper v. Casper, 254 N.W.2d
407, 409 (Neb. 1977) (upholding the trial court's denial of prison visitation because ordering
visitation could be detrimental to a stable home environment).

10 See Note, On Prisoners and Parenting: Preserving the Tie that Binds, 87 YALE

L.J. 1408, 1414, 1414 n.23 (1978) (considering Yarrow, Separation from Parents During
Early Childhood, in 1 REVIEW OF CHILD DEVELOPMENT RESEARCH 89 (1964)). See generally
KATHERINE GABEL & DENISE JOHNSTON, CHILDREN OF INCARCERATED PARENTS (1995).
Gabel and Johnston maintain there is "cumulative evidence" to suggest "the frequency,
nature and duration of parent-child contacts following separation play a critical role in
determining a child's future development." GABEL & JOHNSTON, supra, at 141. According to
Gabel and Johnston, in no other situation is this more true than for children of incarcerated
parents given the "abrupt and forced" nature of such separations. GABEL & JOHNSTON, supra.

1 See infra notes 265-67 and accompanying text on traumatic bonding. This
Article does not suggest that all incarcerated parents should be denied visitation with their
children. In fact, prison visitation can be advantageous to both parents and children,
depending on the parent-child relationship and the nature of the crime or crimes committed
by the incarcerated parent.

12 See Carmille A. v. David A., 615 N.Y.S.2d 584, 589 n.2 (Fam. Ct. 1994)

(quoting the legislative authority for the Family Protection and Domestic Violence
Intervention Act of 1994, ch. 222, 1994 N.Y. Laws 2704, and finding "[t]he corrosive effect
of domestic violence is far reaching. The batterer's violence injures children both directly



Columbia Journal of Gender and Law [Vol. 17:2

complicates this issue further. 13 Regrettably, legal scholars have given little
consideration to the nature of the crime for which a parent is incarcerated. 14

Likewise, they have failed to consider how intimate partner violence affects
parent-child bonding and ultimately, prison visitation determinations. 5 In
addition, a battered woman's right against state interference in the
management of her children has garnered little attention in the debate over
the visitation rights of incarcerated fathers. 16

and indirectly. Abuse of a parent is detrimental to children whether or not they are physically
abused themselves").

13 See infra notes 265-67 and accompanying text.

14 Most legal scholars would agree that a parent's act of physical violence or

sexual abuse against a child clearly diminishes an incarcerated parent's justification for
visitation. It is unclear, however, how acts of violence against the other parent, even those of
an extreme nature which are witnessed by the child, should be perceived, as most scholarship
on prison visitation is silent on the issue. See Note, On Prisoners and Parenting, supra note
10, at 1417-18. In addition, survivor accountability for child exposure to the violent acts
committed by batterers is often misapplied in cases of intimate partner violence. See
Nicholson v. Williams, 203 F. Supp. 2d 153, 207-11 (E.D.N.Y. 2002) (identifying New York
City's Administration for Children's Services' tendency to remove children from the abused
mothers' custody on grounds that those mothers had been neglectful by exposing their
children to the abusive acts of their batterers).

15 See Dana Lowy & Mary Redfield, Criminal Histories and Parental Custody and
Visitation Rights, L.A. L., Oct. 26, 2003, at 25 (addressing legislation specific to California
that restricts the custody and visitation rights of individuals convicted of certain crimes);
Jennifer Emily Sims, Note, "Lizzie's Law": Must We Choose Between the Rights of the
Parent and Protecting the Child?, 25 NEw ENG. J. ON CRiM. & CIV. CONFINEMENT 245, 274
(1999) (considering laws that prohibit perpetrators of domestic homicide from visiting with
their children and arguing for the right to a "fair hearing" for those individuals); Deborah
Ahrens, Note, Not in Front of the Children: Prohibition on Child Custody as Civil Branding
for Criminal Activity, 75 N.Y.U. L. REV. 737 (2000) (suggesting that presumptions against
custody for individuals convicted of certain crimes is intended, not for the protection of
children, but instead to negatively stigmatize offenders); Dance M. Kowalczyk, Note,
Lizzie's Law: Healing the Scars of Domestic Murder-An Emerging National Model, 64
BROOK. L. REV. 1241 (1998) (considering the implications of Lizzie's Law and similar
legislation on the visitation rights of perpetrators of intimate partner homicide); Hillary R.
Stein, Note, Massachusetts' "Lizzie's Law": Protection for Children or Violation of
Parent's Constitutional Rights?, 78 B.U. L. REV. 1547 (1998) (addressing the constitutional
implications of Lizzie's Law and proposes termination of parent rights and parental unfitness
allegations as alternative methods of preventing perpetrators of intimate partner homicide
from obtaining visitation rights).

16 Specifically, the question relates to the rights of a battered parent against state

interference requiring traumatized children to visit with incarcerated perpetrators of extreme
acts of violence. For a general discussion of the constitutional rights of non-custodial parents
weighed against the rights of custodial parents, see Meyer, supra note 7, at 1475 (arguing



2008] Do No Harm 167

The presumption that parents "will make a child's interest 'their
basic concern,"' 17 does not apply to batterers because they tend to
manipulate both their victims and the legal system in forcing visitation
contrary to the best interest of their children. If a parent's desire to visit
with his or her child has little to do with the child's welfare, courts can no
longer view this parent as a protector of the child vested with standard
privileges.

Unlike with other incarcerated parents, in the case of the batterer
father, the nature of his conviction and his distinct characteristics directly
relate to his ability to spend time with his children without doing them more
harm. Accordingly, courts have a unique opportunity to stop the violence in
clear cases involving highly destructive and dangerous role models. In light
of these concerns, this Article examines current guidelines that courts use to
assess the appropriateness of prison visitation generally and suggests a
specialized test for incarcerated batterers.' 8

Accepting the premise that parents have a liberty interest in the
"care, custody, and control" of their children, we can move to the crucial
issue: that no right is absolute.1 9 As a result, this Article argues that violence

that "the courts' reluctance to credit seriously the constitutional rights of non-custodial
parents ultimately says something of broader significance about the constitutional rights of
family privacy generally, including the rights of custodial parents and parents in intact or
'unitary' families").

17 Barbara Bennett Woodhouse, Talking About Children's Rights in Judicial
Custody and Visitation Decision-Making, 36 FAM. L.Q. 105, 109 (2002) (citing the United
Nations Convention on the Rights of the Child, G.A. Res 44/25, U.N. Doc. A/RES/44/25
(Nov. 20, 1989)).

18 See infra Part V, which presents four factors for consideration when assessing

prison visitation requests for perpetrators of extreme acts of violence against women: (A)
nature of the crime(s); (B) parent-child relationships; (C) trauma to the child; and (D)
supervision and transportation related issues. The four factor model presented herein is a
modified version of the prison visitation tests provided by the Supreme Court of Oklahoma
in Harmon v. Harmon, 943 P.2d 599, 605 (Okla. 1997), and the Superior Court of
Pennsylvania in Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super. Ct. 1996). Although neither
case involves acts of violence against women, these cases present rare judicial opinions
providing sound reasoning upon which to begin the analysis of prison visitation
determinations for perpetrators of extreme acts of violence to women.

19 Despite the inherent right of parents to raise their children, the Supreme Court

has found there are limits to this right. See Prince v. Massachusetts, 321 U.S. 158, 166
(1944). Justice Rutledge, in his opinion, maintained that although the care, custody, and
control of the child lie first with the parents, such rights are not "beyond limitation." Id.
Accordingly, Rutledge suggests that the state has the power to limit such rights when child
welfare is at issue. Id. at 166-67; see also Stanley v. Illinois, 405 U.S. 645, 652 (1972) ("We
do not question the assertion that neglectful parents may be separated from their children.");



Columbia Journal of Gender and Law [Vol. 17:2

described by Bonita C. Meyersfield as "extreme acts of violence" against
women has legal and social consequences beyond the criminal act.20 The
result in some cases are multiple harms that place children at risk of short-
term and long-term negative effects, foreseeable to the batterer, the legal
system, and society as a whole. 2' The consequences for causing foreseeable
injury to secondary victims like children may include criminal charges and,
when necessary, diminished privileges. 22 Some batterers are so dangerous

Scott C. v. Marietta C., 593 N.Y.S.2d 139, 141 (Fam. Ct. 1992) (advising that although a
parent's visitation "right is not forfeited by virtue of a parent's incarceration," "[t]he right of
visitation . . . is not absolute"); Zakrzewski v. Fox, 87 F.3d 1011, 1014 (8th Cir. 1996);
Wilkins v. Ferguson, 928 A.2d 655, 667 (D.C. 2007) (holding that a parent's right to
visitation generally is not absolute). But see Meyer, supra note 7, at 1480 (suggesting that
although the constitutional status of non-custodial parents is in doubt, a complete denial of
access to one's children would likely trigger constitutional scrutiny).

20 This Article will focus on "extreme acts" of intimate partner violence against

women only. Extreme acts include the rape, beating, burning, stabbing, shooting,
strangulation, or physical torture of one parent by the other. See Bonita C. Meyersfield,
Reconceptualizing Domestic Violence in International Law, 67 ALB. L. REV. 371, 374
(2003). Meyersfield places domestic violence into two categories. The first group is defined
as "domestic violence," which she explains includes "shoving, pushing or verbal
denigration," and she defines the second category as "private torture," which includes
"battering, breaking bones, burning, raping and torturing," what she considers to be "extreme
acts of domestic violence." Id. Although much of the information contained in this Article
can be applied to homicide cases, this Article will not focus on intimate partner homicide or
the visitation rights of incarcerated parents subsequent to the killing. For a consideration of
custody and visitation in the context of intimate partner homicide, see Lillian Wan,
Comment, Parents Killing Parents: Creating a Presumption of Unfitness, 63 ALB. L. REV.
333 (1999); Holly C. Wallace, Note, Visitation Rights of a Parent Convicted of the First-
Degree Murder of the Other Parent: An Analysis of Lizzie's Law, 37 BRANDEIS L.J. 233
(1998-99). For a discussion of the significance of employing specific terminology, or
intimate partner violence and visitation determinations as gendered phenomena, see infra
Part I.

2 1 These multiple harms extend well beyond the act of endangering the welfare of a

child, resulting in some cases in both short and long-term psychological damage to the child,
discussed infra Part V.C.

22 Some legal scholars maintain that abuse to the mother is abuse to the child. See

Pauline Quirion et al., Protecting Children Exposed to Domestic Violence in Contested
Custody and Visitation Litigation, 6 B.U. PUB. INT. L.J. 501, 512 (1997) ("A court should
treat a battered woman's child as if the abuser had directly battered the child . . . 'such abuse
should be considered misconduct toward the child warranting restriction on visitation."'
(quoting MASS. GENDER BIAS COMM., REPORT OF THE GENDER BIAS STUDY OF THE SUPREME

JUDICIAL COURT 73 (1989))).



2008] Do No Harm 169

that they must forfeit visitation with their children,23 while in other cases
batterers and children may benefit from therapeutic visitation. 24

Some may view such restrictions on a parent's interest in visitation
with his child as a punishment.25 The remedy, however, must be understood
for its intended purpose-to act as a protective measure for a child who
may be suffering from psychological trauma.26 The debate should center on
what is in the best interest of the child, not what is best for the incarcerated
parent.27

23 Similar outcomes are found in cases of parental unfitness, where rights are

terminated or diminished. Although termination of parental rights (TPR) of a perpetrator
may be necessary in some cases of extreme acts of domestic violence, that discussion is
beyond the scope of this Article. This Article focuses on remedies that may be used in place
of TPR given the realities of our legal system, lack of statutory mandates, and courts'
reluctance to utilize such measures. For a consideration of terminating the parental rights of
perpetrators of domestic violence in general, see Amy Haddix, Unseen Victims:
Acknowledging the Effects of Domestic Violence on Children Through Statutory Termination
of Parental Rights, 84 CAL. L. REV. 757 (1996).

24 For a general discussion of therapeutic visitation, see GABEL & JOHNSTON, supra

note 10, at 202.

25 See Martha Albertson Fineman, Domestic Violence, Custody, and Visitation, 36

FAM. L.Q. 211, 220 (2002) (considering Robert J. Levy's position, in LEGAL AND MENTAL

HEALTH PERSPECTIVES ON CHILD CUSTODY LAW: A DESKBOOK FOR JUDGES 112 (1998), that
"the best interest of children are not served by punishing abusive fathers"). Contra Pollard v.
Akhdary, No. 03A01-9503-CV-00109, 1996 WL 196525, at *8 (Tenn. Ct. App. Apr. 24,
1996) (explaining that "visitation should not be made to punish or reward parents").

26 See Lassiter v. Dep't of Soc. Servs. of Durham County, 452 U.S. 18, 34 (1981)

(addressing the right to counsel in termination of parental rights proceedings). In a
concurring opinion, Chief Justice Burger explained that the purpose of a termination of
parental rights proceeding is "protective" not "punitive." As a result, the court's goal is to
protect the best interest of the child, not to punish the parent. Id. (Burger, C.J., concurring).
Similarly, in a visitation proceeding, the court's role as protector of the child should not be
confused with an erroneous conclusion that the court's actions are intended to punish the
parent for his or her criminal behavior. Although the parent's bad actions may be the cause
of the deprivation, the court's denial of visitation is not a punitive measure; it is a protective
action. Criminal proceedings are the forum for punishment when a law is violated. The
visitation proceeding should act as a protective measure to ensure the safety of the child.

27 The phrase "best interest" is often used to indicate the standard applied by courts

in making custody and visitation determinations. In the context of the above assertion, the
term is used in its broader sense to signify what is "best" for the child or children at issue.
See John Batt, Child Custody Disputes and the Beyond the Best Interests Paradigm: A
Contemporary Assessment of the Goldstein/Freud/Solnit Position and the Group's Painter v.
Bannister Jurisprudence, 16 NOVA L. REV. 621, 622 (1992) (maintaining that although
employing a best interest analysis may require a focus on many factors, "the aspirational
position of our legal system is that the child's welfare is always paramount"); Joseph McGill



Columbia Journal of Gender and Law [Vol. 17:2

The best interest of the child may be an elusive goal for a system
ill-informed about intimate partner violence and childhood trauma. For
many judges, the link between intimate partner violence and harm to
children is not clear.28 As a result, judicial visitation determinations made to
benefit incarcerated batterers may further traumatize and impede the
recovery of children exposed to extreme acts of violence against their
mothers. To the extent that future injury is foreseeable, our system of justice
must properly respond to the needs of children. 29 Although exposure to
extreme acts of violence will not harm all children, 30 by acknowledging that

et al., Visitation and Domestic Violence: A Clinical Model of Family Assessment and Access
Planning, 37 FAM. & CONCILIATION CTS. REV. 315, 324 (1999) ("Moreover, 'the well-being
of the children must be the primary consideration over and above the parents' right to
visitation."' (citation omitted)). See discussion of the "best interest" standard used by courts
infra Part IV.

28 MARY ANN MASON, THE CUSTODY WARS: WHY CHILDREN ARE LOSING THE

LEGAL BATTLE, AND WHAT WE CAN Do ABOUT IT 150-51 (1999). Mason explains:

Some judges believe a parent can be kind and loving toward his child
even if brutal toward his spouse .... Can a father be kind and loving
toward his children yet violent toward their mother? This may be
possible for some, but many of these fathers abuse their children as well.
... [R]esearch conducted on a large national sample found that at least
50 percent of batterers who assault their wives frequently also physically
injure their children.

Id. See also Leigh Goodmark, From Property to Personhood What the Legal System Should
Do for Children in Family Violence Cases, 102 W. VA. L. REV. 237, 253 (1999) ("Worse
still, many judges simply refuse to connect violence against a parent with damage to a child;
if the child hasn't been physically harmed by the batterer, judges fail to see why family
violence should impact upon custody and visitation decisions."); Quirion et al., supra note
22, at 501.

29 See Goodmark, supra note 28, at 274-75 (explaining that "[i]ndividual judges
are the weak link in the system designed to protect children from violent homes in custody
and visitation decisions"); Haddix, supra note 23, at 800 (maintaining that "[s]tates have an
important governmental interest in protecting children from physical and emotional harm").

30 E-mail from Leigh Goodmark, Associate Professor, University of Baltimore

School of Law to Dana Harrington Conner (Aug. 14, 2007) (on file with the author)
(referring to Jeff Edleson's work showing that some children are not negatively affected by
exposure to domestic violence); see also Jeffrey L. Edleson, Studying the Co-Occurrence of
Child Maltreatment and Domestic Violence, in DOMESTIC VIOLENCE IN THE LIVES OF
CHILDREN 104 (Sandra A. Graham-Bermann & Jeffrey L. Edleson eds., 2001) (referring to
Jeffrey L. Edleson, Children's Witnessing ofAdult Domestic Violence, 14 J. INTERPERSONAL
VIOLENCE 839, 839-70 (1999)) [hereinafter Edleson, Child Maltreatment and Domestic
Violence]. According to Edleson:



2008] Do No Harm

exposure places children in jeopardy,3' our system can begin to identify
those children suffering from trauma and respond to their needs.3 2

[R]esearch shows that some children who witness violence exhibit few,
if any, developmental problems and that associated problems are
frequently moderated by a variety of factors. A careful assessment of the

harm that results from witnessing violence and of protective factors
existing in the child's environment may reveal that witnessing, at least in
some cases, does not result in maltreatment of a child.

Edleson, Child Maltreatment and Domestic Violence, supra, at 104.

31 Although beyond the scope of this article, our system often incorrectly holds

battered women responsible for the dangerous behavior of batterers. For a consideration of
this issues, see Cindy S. Lederman et al., The Nexis Between Child Maltreatment and

Domestic Violence, 2 J. CTR. FOR FAMS., CHILD. & CTS. 129, 133 (2000).

32 Although not addressed herein, other acts of violence against women are

relevant to visitation, as well as the broader context of violence against women generally. It
is important to understand that the category of "extreme acts" of intimate partner violence
should be considered only a small subset of the larger picture of what Nancy Ver Steegh
describes as "intimate terrorism." Intimate terrorism cases lacking extreme acts of violence

require different approaches and remedies not addressed in this Article. See Nancy Ver
Steegh, Differentiating Types of Domestic Violence: Implications for Child Custody, 65 LA.
L. REv. 1379 (2005). Ver Steegh categorizes domestic violence not by the abusive act itself
but rather by a batterer's use of power and control to terrorize the other partner,
distinguishing "intimate terrorism" from "situational couple violence." Id. at 1384.
According to Ver Steegh, in intimate terrorism:

[V]iolence is one tactic in a larger pattern of power and control. Control
is exerted by making threats, wielding economic control, applying
privilege and punishment, manipulating and threatening children,
isolating the victim, and inflicting emotional and sexual abuse. As

compared with other types of violence, intimate terrorism involves more
frequent per couple incidents, more severe violence, and results in more

serious injury.

Id. at 1387-88. Situational couple violence on the other hand, "does not involve a larger
pattern of power and control" and is viewed as a marital dispute that results in an isolated
violent incident. Id. at 1394; see also McGill et al., supra note 27, at 316 (providing
assessment tools to determine the type and extent of violence, as well as how intimate
partner violence influences parents and their children); ELIZABETH M. SCHNEIDER, BATTERED
WOMEN & FEMINIST LAWMAKING 65 (2000). According to Schneider:

The definitions of battering that social scientists traditionally have
adopted focus on physical abuse, and for strategic purposes battered
women's activists have often adopted these definitions as well. A
battered woman is a woman who is hit or hurt repeatedly, or against
whom weapons are used; definitions of battering may involve the
amount, type, frequency, or intensity of the hitting, or link hitting with
rape or other forms of sexual abuse, or with other types of violence.



172 Columbia Journal of Gender and Law [Vol. 17:2

I. DEFINING THE ISSUES

Various forms of legal process define the harm of battering
differently and convey particular messages about its social
impact. 

33

According to the Bureau of Justice Statistics, in 1999, state and
34federal prisons housed an estimated 721,500 parents. Fathers were more

likely than mothers to be violent offenders. 35 In state prisons, forty-five
percent of fathers were incarcerated as a result of a violent offense, whereas
only twenty-six percent of mothers were incarcerated as a result of
committing a violent crime. 36 "Almost half-forty-six percent-of parents
in state prison were violent recidivists (repeat offenders with either a
current or past violent offense). 37 The Bureau reports that incarcerated
parents in state prisons engaged in other dangerous behavior associated with
alcohol use, namely arguments with family members and physical
violence.38 In local jails the situation is worse. The Bureau of Justice
Statistics estimates that approximately "1 in 4 convicted violent offenders
confined in local jails had committed their crime against an intimate
[partner]. 39 One study in particular indicated that "[w]omen in the United
States are more likely to be victimized, through assault, battery, rape, or
homicide, by a current or former male partner than by all other assailants

SCHNEIDER, supra, at 65. Recognizing Schneider's posture, one must balance the necessity to
focus on a narrow issue, protect the interests of incarcerated survivors, and ensure all women
who have suffered violence in their lives, whatever the form, are treated justly.

33 SCHNEIDER, supra note 32, at 46.

34 BUREAU OF JUSTICE STATISTICS, NCJ 182335, INCARCERATED PARENTS AND

THEIR CHILDREN 1 (2000).

" Id. at 6.

36 id.

37 Id. at 7.

38 Id. at 8 ("[P]arents in State prison reported engaging in troubled behaviors
associated with prior alcohol abuse. About 48% of parents said that they had driven drunk in
the past, 42% reported arguments with family members and friends while drinking, and 39%
had alcohol-related physical fights.").

39 BUREAU OF JUSTICE STATISTICS, CRIMINAL OFFENDERS STATISTICS, INTIMATE

VICTIMIZERS, available at http://www.ojp.usdoj.gov/bjs/crimoff.htm (last visited Aug. 8,
2007).



2008] Do No Harm 173

combined. ' 40 Additionally, experts estimate that approximately ten million
children each year witness serious acts of violence committed
predominantly against their mothers.4 '

To discuss intelligently an incarcerated male batterer's legal
interests in contact with his children,42 one must clearly define the
individuals in need of protection and the acts at issue.43 With regard to what
has traditionally been called "domestic violence," Elizabeth M. Schneider
suggests, at a most basic level of discussion, that how we define the terms
and the values we attach to names are particularly important. 44 Many
feminists and legal scholars have moved away from the term "domestic
violence" to describe the acts of abuse that occur within the context of an
intimate relationship and use "intimate partner violence" (IPV) as an
alternative term to describe the abuse perpetrated by one adult against
another within an intimate relationship. For some, the term "IPV" may also
fail to capture the intent and meaning of the violence as it occurs in the
family unit. By its characterization, IPV focuses on the violence in the adult
relationship, possibly to the exclusion of the children involved. However,

40 Quirion et al., supra note 22, at 504-05 (citing Council on Ethics and Judicial

Affairs, Physicians and Domestic Violence: Ethical Considerations, 267 JAMA 3190
(1992)).

41 Dorothy Lemmey et al., Severity of Violence Against Women Correlates with

Behavioral Problems in Their Children, 27 PEDIATRIC NURSING 265 (2001) (explaining it is
estimated "10 million children witness the punching, kicking, stabbing, strangling, or
shooting of the child's parent, most commonly their mother"). But cf Ernest N. Jouriles et
al., Issues and Controversies in Documenting the Prevalence of Children's Exposure to
Domestic Violence, in DOMESTIC VIOLENCE IN THE LIVES OF CHILDREN 22 (Sandra A.
Graham-Bermann & Jeffrey L. Edleson eds., 2001). Although experts agree that many
children are exposed to domestic violence, there has been some debate about how to quantify
that number. Jouriles et al., supra. Moreover, experts do not necessarily agree that the
problem "is truly at epidemic proportions, as might be suggested from the rough estimates"
available. Jouriles et al., supra, at 26.

42 The male pronoun will be used to describe the incarcerated perpetrator of

extreme acts of violence, given overwhelming evidence that the vast majority of extreme
acts of intimate partner violence are committed by men against women. See, e.g., Solangel
Maldonado, Recidivism and Paternal Engagement, 40 FAM. L.Q. 191, 192 n.3 (2006)
("Ninety-three percent of incarcerated parents are male."); BUREAU OF JUSTICE STATISTICS,

NCJ 149259, VIOLENCE BETWEEN INTIMATES 2 (1994) (providing that ninety to ninety-five
percent of all victims of domestic violence are women).

43 SCHNEIDER, supra note 32, at 46 (maintaining that "naming is a form of
claiming--claiming identity, claiming experience, claiming rights").

"Id.



Columbia Journal of Gender and Law [Vol. 17:2

when intimate partner violence occurs in the context of the family unit, it is
violence to the family as a whole.45

Nevertheless, there are valid reasons why feminists may want to
discard the terms "domestic" or "family violence. 4 6 As Schneider suggests,
these long-standing terms devalue the many surrounding issues.4 7

Historically, American society has treated domestic and family violence as
private matters. 48 The answer, however, may be a simple one. Call it what it

45 When referring to the family unit, this Article defines "the family" as either a
heterosexual or homosexual couple residing with a child of one or both parties through birth,
adoption or other legal guardianship.

46 SCHNEIDER, supra note 32, at 20 (quoting ELIZABETH PLECK, DOMESTIC

TYRANNY: THE MAKING OF SOCIAL POLICY AGAINST FAMILY VIOLENCE FROM COLONIAL
TIMES TO PRESENT 182 (1987)). Schneider reasons that the term "domestic disturbance,"
which police used until the mid-1970s, carried a depoliticized anti-feminist meaning. Id.

47 Id. at 48. According to Schneider:

This use of deliberate statist imagery highlights the degree to which
intimate violence is understood within a broader public-private
dichotomy, and challenges this dichotomy to describe the "personal" and
"domestic" problem of intimate violence as a problem of public
dimension-a harm that we recognize as a serious public, national, and
indeed international problem. The seriousness of the loss of freedom,
liberty, basic human rights, privacy, and autonomy that results from
woman abuse may seem invisible in the case of an individual family and
relationship.

Id.

48 Id. at 13 (explaining that although nineteenth century English and U.S.

authorities rejected a husband's right at common law to corporally punish his wife, the
American legal system still treated violence that occurred in the home differently from other
cases involving physical violence); see also Michelle Madden Dempsey, What Counts as
Domestic Violence? A Conceptual Analysis, 12 WM. & MARY J. WOMEN & L. 301, 312
(2006); Molly Butler Bailey, Improving the Sentencing of Domestic Violence Offenders in
Maine: A Proposal to Prohibit Anger Management Therapy, 21 ME. B.J. 140, 145 (2006);
Caroline Dettmer, Comment, Increased Sentencing for Repeat Offenders of Domestic
Violence in Ohio: Will This End the Suffering?, 73 U. CrN. L. REV. 705, 712 (2004) (citing
Natalie Loder Clark, Crime Begins at Home: Let's Stop Punishing Victims and Perpetuating
Violence, 28 WM. & MARY L. REV. 263, 268 (1987)). Even today, the term domestic
violence may convey a new and different message for some individuals. Advocates' hard
work to educate the legal system that the focus should be on the battered woman may be to
her detriment, as well as the detriment of her children. In 2005, the American Bar
Association published a judicial checklist tear-out sheet as a guide "to help judges protect
children in cases with domestic violence." Margaret Drew, Judicial Checklist, 39 FAM. L.Q.
1, 5 (2005). The tear-out includes a definition of domestic violence that suggests that it "does
not typically include child abuse, child-to-parent violence, or sibling violence, which are



2008] Do No Harm 175

is: violence to women and children. As a result, this Article will use the
terms "domestic violence," "family violence," and "intimate partner
violence" in moderation; the term "violence to women" will serve to signify
abuse to women in intimate partner relationships involving children.49

This discussion examines what Bonita C. Meyersfield describes as
"extreme violence" including, but not limited to, rape, attempted rape,
sexual assault, burning, stabbing, shooting, strangulation, physical torture,
intentionally causing "substantial bodily" injury, 50 or threat of serious
physical harm perpetrated by one parent against the other parent or
household member.5 '

The intent and focus of this analysis is on individuals who commit
intentional acts of violence to harm another-not acts of self-protection. 52

The crimes considered are narrowly defined, focusing on perpetrators to the
exclusion of incarcerated survivors who seek access to their children. This
Article proposes solutions to respond to the trauma that mothers and

forms of 'family violence."' Drew, supra. Maintaining that domestic violence does not
include abuse to the children may confuse and mislead some individuals.

49 Another term which gives justice to the issue is "woman abuse," which
Schneider uses throughout Battered Women & Feminist Lawmaking. See generally
SCHNEIDER, supra note 32.

50 MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(l) (2003). The term "substantial

bodily harm" is borrowed from the Model Rules because it best describes violence of an
extreme nature intended to harm and not committed in an effort to defend.

51 Meyersfield, supra note 20, at 374.

52 The traditional term "self-defense" is not used in the context of extreme acts of
violence given its failure to recognize the unique aspects of self-protection as they relate to
victims of intimate partner violence. See generally Linda L. Ammons, Mules, Madonnas,
Babies, Bath Water, Racial Imagery and Stereotypes: The African-American Woman and the
Battered Woman Syndrome (Part 11), 1995 Wis. L. REV. 1003, 1068-78; cf BLACK'S LAW

DICTIONARY 1390 (8th ed. 2004) (defining self-defense as "[t]he use of force to protect
oneself, one's family, or one's property from a real or threatened attack. Generally, a person
is justified in using a reasonable amount of force in self-defense if he or she believes that the
danger of bodily harm is imminent and the force is necessary to avoid this danger").
Schneider explains the relationship between gender and understandings of self defense:

Many courts have now accepted the view that there is gender bias in the
law of self-defense. Yet ongoing legal work in this area teaches us new
lessons. Judges have considerable difficulty in genuinely "hearing" and
taking in women's experiences, and consequently in modifying the law
to take them into account.

SCHNEIDER, supra note 32, at 33.



Columbia Journal of Gender and Law [Vol. 17:2

children suffer as a result of violence committed by batterers Initiating
the discussion, however, presents particularized difficulties for battered
women. Inevitably, solutions restricting batterers' privileges may target the
precise class of individuals that need protection.54 The application of relief
against the intended beneficiary in this context exposes our society's
predisposition to blame mothers while failing to hold men accountable for
their actions.55

In the context of this Article, "harm to the child or children" refers
to the effects that are caused by violence perpetrated by one parent upon the
other adult parent or household member.56 This Article views exposure in
its broadest context, and not solely in terms of witnessing violent acts.57

Merely living in a violent home is harmful to children in many ways.58

Children do not have to witness intimate partner violence with their eyes to
be injured. Children hear the violence with their ears, they feel it in their
hearts, they touch it, they taste it, and they live it day after day, even if they

5 See infra Part VI.

54 Based on a conversation with Professor Marina Angel, Temple Law School, at
the Fourteenth Annual CLE Conference, Update for Feminist Law Professors (Feb. 3, 2007).
Angel expresses valid concern that prison visitation restrictions could be used against
incarcerated, abused mothers. This certainly is one of many difficulties of proposing draft
legislation or model tests to solve a gendered problem.

55 Cf Rebecca Ann Schernitzki, What Kind of Mother Are You? The Relationship
Between Motherhood, Battered Women Syndrome and Missouri Law, 56 J. Mo. B. 50, 51
(2000) (suggesting a double standard for mothers and fathers); Lynn Hacht Schafran, Is the
Law Male?: Let Me Count the Ways, 69 CHI.-KENT L. REv. 397, 401 (1993) (identifying the
male experience as a contributing factor for gender bias in the law),

56 Direct physical abuse to children is beyond the scope of this Article.

57 The term "exposure" to violence will be used in place of "witnessing" violence
to capture the scope of the problem and true influence intimate partner violence has on
children. See Peter G. Jaffe et al., Making Appropriate Parenting Arrangements in Family
Violence Cases: Applying the Literature to Identify Promising Practices, Sept. 7, 2005, at
14, http://www.hspc.org/policyforums/pdf/JaffePaperJusticeReportSept05.pdf (defining
exposure to violence).

58 See Marjory D. Fields, The Impact of Spouse Abuse on Children and Its
Relevance in Custody and Visitation Decisions in New York State, 3 CORNELL J.L. & PUB.
POL'Y 221, 225-35 (1994) (explaining that "[c]hildren suffer emotional and psychological
harm not only when they are victims of abuse, but also when they witness the abuse of one
parent by another and when they live in a violent home without witnessing abuse").



2008] Do No Harm

never see one act of physical violence.5 9 According to Leigh Goodmark, the
aftermath of the violence may be just as damaging for many children

because they see the injuries and destruction, they attempt to console their
traumatized mothers, and they either continue to live in an atmosphere of
terror and dysfunction, or with fear of the unknown.6 ° In addition, Lundy
Bancroft and Jay G. Silverman suggest that the child's exposure to the

batterer himself, notwithstanding the violence, is the critical factor in the
trauma the child experiences.

61

59 See Goodmark, supra note 28, at 244 (defining "witnessing violence" in the
broadest of terms). Goodmark suggests that children witness intimate partner violence not
only with their eyes:

Witnessing includes not only what a child sees during an actual violent
event, but also what the child hears during the event, what the child
experiences as part of the event, and what the child sees during the
aftermath of the event .... They hear their mothers screaming or crying
or begging . . . . [They] see[] a parent's battered and bloodied face,

watch[] as a parent is interviewed or apprehended by the police, mov[e]
with a parent to a shelter to escape further violence. All of these forms of
witnessing can have the same detrimental impact on children as actually
watching an event take place. In some cases, the impact may be more
damaging; . . . they may imagine scenarios that are scarier and more

violent than the events that actually occur.

Id.; see also Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence:
the Use and Abuse of Child Maltreatment, 53 HASTINGS L.J. 1, 82 (2001) (explaining that
children are "closer" to the violence than we understand).

60 Goodmark, supra note 28, at 244.

61 See generally LUNDY BANCROFT & JAY G. SILVERMAN, THE BATTERER AS

PARENT (2002). Bancroft and Silverman base their observations and theories about domestic
violence on over twenty years of clinical experience working with batterers. Id. at 2-3. They
explain the problem of childhood exposure to intimate partner violence as follows:

We believe therefore that the psychological distress observed in children
exposed to domestic violence results not only from their witnessing of
periodic acts of violence but also from exposure to a batterer, and to his
parenting style, in everyday life; in fact, we believe that the phrase
"children exposed to batterers" is often more accurate than the current
phrase "children exposed to domestic violence," for reasons that will
become clear in the pages ahead. For closely related reasons, we find
that a batterer's parenting cannot be assessed separately from his entire
pattern of abusive behaviors, all of which have implications for his
children.

Id. at 2.



178 Columbia Journal of Gender and Law [Vol. 17:2

Whether by direct observation of the acts of extreme violence or as
a result of the after-effects of the violence on the victim-parent, some
children undergo trauma themselves. 62 Unfortunately, it is often difficult to
determine whether a child is suffering, as well as the extent of his or her

63trauma. According to Marjory D. Fields, children do not suffer exclusively
from exposure to acts of violence;64 continued contact with the batterer may
also impede their recovery resulting in long-term negative consequences for
society as a whole.65

II. THE PROBLEM OF PRISON VISITATION DETERMINATIONS

[The] process of subversion happens in many ways... lawyers who
handle these claims, and the judges who rule on them, must be
genuinely able to hear them . . . . [T]he process of hearing
experiences that may be threatening or unfamiliar, of really
listening to those experiences and "taking them in" in order to
reshape factual examination or theory of the case, is complex and
difficult.

66

Children represent an unshakable connection between the abuser
and the survivor after the violent relationship ends.67 According to Bancroft
and Silverman, the end of the abusive relationship marks the beginning of
new and different issues for the adult survivor of violence. 68 If asked to

62 See McGill et al., supra note 27, at 315 (establishing that "witnessing violence

was one of three predictors of post-traumatic stress disorder in children").

63 See infra Part IV.

64 See Fields, supra note 58, at 230.

65 See infra Part V.C.

66 SCHNEIDER, supra note 32, at 229.

67 Deborah M. Goelman, Shelter from the Storm: Using Jurisdictional Statutes to

Protect Victims of Domestic Violence After the Violence Against Women Act of 2000, 13
COLUM. J. GENDER & L. 101,106-07 (2004); Patricia K. Susi, The Forgotten Victims of
Domestic Violence, 54 J. Mo. B. 231, 232 (1998).

68 See BANCROFT & SILVERMAN, supra note 61, at 44. Bancroft and Silverman
"observe that many batterers' motivation to intimidate their victims through the children
increases when the couple separates, because of the loss of other ways to exert control." ld;
see also HERMAN, supra note 1, at 77 (maintaining that "[t]hreats against others are often as
effective as direct threats against the victim").



2008] Do No Harm

name one of her greatest concerns, a survivor of extreme acts of violence
will likely respond that continued contact between the perpetrator and their
children is her chief concern. 69 Yet by ending her relationship with the
perpetrator, the survivor is no longer in a position to act as the protector of
her children.

0

Members of the bench and bar commonly misperceive that
perpetrators of intimate partner violence do not pose a risk to their
children. 71 Studies show, however, that batterers are seven times more
likely to harm their children physically than parents who do not engage in
battering.72 Physical abuse statistics reflect only one of the many risks
facing children of batterers. Bancroft and Silverman maintain that such
statistics do not account for the psychological harm children exposed to
abusive fathers experience.7 3 Ironically, risk of harm or trauma to the child
may increase when the abusive relationship ends because the perpetrator's
only means of power and control over the battered woman is through the
child.74

69 Based on the author's experience representing survivors of intimate partner

violence since 1994. See also Quirion et al., supra note 22, at 514-15 (explaining the
abuser's post separation efforts to continue to control the battered woman through her
children).

70 If visitation is ordered after the abusive relationship ends, the battered woman in

no longer physically present to protect her children from the perpetrator's acts of violence or
emotionally damaging behavior. BANCROFT& SILVERMAN, supra note 61, at 44.

71 Based on the author's experience representing survivors seeking protection from
their abusers and custody of their children since 1994. See also MASON, supra note 28;
Goodmark, supra note 28.

72 See BANCROFT & SILVERMAN, supra note 61, at 64.

73 Witnessing domestic violence is not the only risk to children of abusive fathers.
According to Bancroft and Silverman, the mere presence of the batterer in the home has
negative implications on the family. Id. at 2-3.

74 See id. at 75-76. Bancroft and Silverman explain:

Batterers can use the children as vehicles for communicating with their
former partners, a tactic that becomes particularly important if the
woman has obtained a restraining order or has taken other steps to
indicate that she wishes that the batterer not contact her. One client of
ours had said to his wife prior to separation, "I love you, and that's for
life. If I can't have you, no one else will, and we're going to die
together." After separation, he said to the children, "Tell your mother I
will always love her." The children had no awareness of the implications
of this message.



180 Columbia Journal of Gender and Law [Vol. 17:2

Although states have taken steps to protect survivors by enacting
legislative presumptions against custody determinations in favor of
perpetrators, many fail to provide sufficient protections when the issue is
visitation. Such an outcome results in the ultimate legal loophole. 75 By
denying joint custody to a perpetrator, our legal system sends a strong
message: we as a society find the abuser to be an inappropriate decision
maker, a poor role model, and a potential danger to the child's welfare.
Nevertheless, when a perpetrator is given access to the child through a
visitation order, prison visitation in particular, the risk of long-term negative
consequences to children receives little consideration.

The very fact that prison visits take place in a controlled setting
may also work against the survivor and her children. Hearing officers may
mistakenly believe that prison visitation provides added protections against
physical harm to a child because they occur in a supervised setting.
Although rare, physical harm to children does occur during prison
visitation.76 Unfortunately, the more pervasive, yet less easily detected harm

Id. at 76.

" See N.M. M v. J.W. M., No. CNOO-07147, 2002 WL 32101256 (Del. Fam. Ct.
Dec. 18, 2002). The court in N.M M v. J.W. M. granted the mother sole custody of the
children based on several factors including evidence of serious acts of domestic violence.
Nonetheless, prison visits were ordered between the father and his two daughters despite
evidence that the father had strangled and threatened the mother, as well as "doused
Mother's car with gasoline and blew it up in her driveway." Id. at *2. In addition, despite the
fact that the mother was the victim of these serious acts of intimate partner violence she was
ordered to deliver the children to the prison to facilitate visitation between the father and the
children. Id at *3. The order failed to provide a detailed analysis as to the appropriateness of
prison visitation given the father's propensity to commit serious acts of violence against a
family member, the nature of the violence, the effect such violence had on the children, and
the children's desire not to see their father. Id. at *1. Another such case was Juli B. F. v.
Clarence S. M Jr., Nos. CN95-08172, 96-20683, 1997 WL 905956 (Del. Fam. Ct. Nov. 10,
1997). The father's conviction for assaulting the mother classified him as a perpetrator of
domestic violence, triggering a presumption against awarding him joint or sole custody. Juli
B. F., 1997 WL 905956, at *2. Despite granting the mother sole custody pursuant to the
presumption, the court explained that it must determine visitation for the incarcerated father
pursuant to the best interest standard. Juli B. F., 1997 WL 905956. Ultimately, the court
determined that "meaningful contact" between the father and his daughter was not possible
because of the father's incarceration and the child's young age. Juli B. F., 1997 WL 905956,
at *3. It is likely, however, that the court based its decision in part on the father's sexual
abuse of a four-year-old boy and the fact that while the parents lived together, the "[flather
walked around the residence nude, and left Dominique home alone while he went to buy
beer." Juli B. F., 1997 WL 905956. The result may have been different had sexual abuse of a
third party not been an issue and the case had solely involved intimate partner violence.

76 See Bougor v. Murry, 283 A.D.2d 695, 695-96 (N.Y. App. Div. 2001)

(explaining that although incarceration alone is not a valid basis upon which to deny



2008] Do No Harm 181

to children comes from the psychological trauma they suffer as a result of
continued contact with the battering parent no matter where the visits
occur.

77

Rahn v. Norris may best represent the complex and sometimes
arbitrary nature of family court proceedings regarding visitation decisions
for incarcerated perpetrators of extreme acts of violence and how visitation
can place children at risk of psychological trauma.78 Anthony Norris was
incarcerated for charges relating to his abuse of Tara Rahn, the mother of
his son David Norris.79 In July of 1999, Anthony dragged Tara from a
vehicle, physically assaulted and attempted to rape her in the presence of
three-year-old David.80 As a result of these as well as other criminal acts,
Anthony was sentenced to five years imprisonment.81 In March of 2001, the
family court considered the custody and visitation rights of Anthony,
incarcerated at the time of the trial. Evidence presented at trial showed that
young David was extremely aggressive, had difficulty forming relationships
with his peers, and often hit, spit on and bit other children. 2 David also
acted out sexually toward other young children by pulling down his pants
and touching his genitals.8 3 Despite evidence of serious acts of violence
perpetrated by the father in the presence of the child and what appears to be
the child's clear modeling of that behavior, 84 the court ordered prison visits
between the child and father.8 5

visitation, a denial is appropriate if it can be shown that visitation is not in the best interest of
the child). According to the Appellate Court, the "[t]estimony at trial established that
petitioner perpetrated domestic violence against respondent while she was pregnant with the
child and that, during one of the three prison visitations, he struck the child in the face." Id.
at 695.

7 See infra Part V.B.

78 Rahn v. Norris, 820 A.2d 1183 (Del. Fam. Ct. 2001).

79 Id. at 1184-85. To avoid confusion with his father, Anthony Norris, young
Anthony James David Norris is referred to as David Norris throughout this Article.

80 Id. at 1185.

81 Id.

82 id.

83 id.

84 Id. (according to David's counselor, "children often model adult behavior").

85 d. at 1198-99.



Columbia Journal of Gender and Law [Vol. 17:2

The court in Rahn v. Norris relied, in part, on the testimony of
David's counselor, who began working with him six months after his father
assaulted his mother. Although the counselor explained "children often
model adult behavior,, 86 the court inferred from her testimony that the
sexual issues were no longer a concern. 87 Ironically, the court did not find
David's sexually inappropriate behavior relevant to the issue of visitation,
despite the fact that David was unable to attend a conventional school

86 Id. at 1185. The court's opinion provides the following account of David's

behavior:

Ms. Meek [David's counselor] went on to state that records reflected
David [from three and a half to four years of age] . ..demonstrated
difficulty with peer relationships, and he was extremely aggressive and
angry, often hitting and spitting on other children, and biting other
children so they were injured. At that time, David also demonstrated
sexually inappropriate behavior which involved pulling his pants down,
pulling on his penis, and making sexual advances towards other children.
It should be noted that Ms. Meek began working with David in late
December of 1999, which came six (6) months after the July 19, 1999,
incident in which father assaulted mother in David's presence, and for
which father was later incarcerated. Ms. Meek noted that children often
model adult behavior. In December of 1999, Ms. Meek observed in
David severe cussing, hitting, kicking, biting of other children, and
hostility against teachers and counselors.

Id.

87 Id. at 1186. Although the written opinion suggests a bleak picture for young

David's future, it appears that the court relies upon some of the counselor's testimony to
support its holding:

Eventually, the sexual concerns about David resolved, and this was no
longer a concern of Ms. Meek [the counselor] at the time of the trial.
David is taking Atarol, a psychiatric stimulant which helps the ADHD.
He also takes Risperdol, an anti-psychotic medication which helps
manage anger. Ms. Meek testified that David will require intense one-
on-one instruction in the future, and that it may not be possible for David
to attend regular schools. He continues to be extremely impulsive, and
poses a risk for injury to others as well as himself. Presently, David's
play is ..."traumatic" . .. with a "heavy incarceration component."
David's play often involves placing the other person in jail for doing
something bad. Ms. Meek believes that David is reflecting his memory
of his father's arrest.



2008] Do No Harm 183

because he was unable to control his actions and posed a danger to himself
and others.

88

The court heard the custody and visitation matters approximately
one year and nine months after the altercation the minor child witnessed and
fifteen months after David began to receive counseling. In the year prior to
the trial, David was diagnosed with several disorders, including Post-
Traumatic Stress Disorder (PTSD), which a doctor attributed to his
observation of the domestic violence incident in July 1999.89 During the
custody trial, David's mother also testified to prior acts of violence that
David witnessed, one in particular where his father slapped her, resulting in
a bloody nose.90

It is hard to imagine why a court would order prison visits in a case
like Rahn v. Norris. It is likely that the court was influenced by the mother's
testimony about David's extremely close relationship with his father and
what the court viewed as her acceptance of some of the blame for David's
behavior, because she did not leave the relationship sooner.91 In this case, it
is clear the legal system failed to appreciate the father's sole responsibility
for his criminal acts against David's mother, which occurred in the presence
of young David, the reasons that prevent battered women from breaking
free from abusive relationships, 92 the probability of traumatic bonding,93

and the detrimental effect exposure to violence has on children.94

88 Id. For a look at PTSD and domestic violence, see Weithom, supra note 59, at

87 (maintaining that PTSD has been diagnosed in thirteen to fifty-one percent of children
exposed to acts of intimate partner violence).

891d. at 1185-86.

9°Id. at 1187.

91 Id

92 The court deflects blame for David's behavior on his mother's decision to

remain in an abusive relationship. Id. at 1187. It also notes, "[A]lthough nothing that the
mother did justified the father's outrageous conduct, the Court is concerned that mother
previously exhibited towards father and in the presence of David a lesser form of domestic
violence." Id. at 1197; see also Christina L. v. Harry J., No. CN93-9894, 1995 WL 788196,
at *21 (Del. Fain. Ct. June 5, 1995) (explaining that "[w]hile it appears unfathomable that a
woman would remain in any relationship where she is victimized to such a degree,
psychologists specialized in the field of domestic violence recognize that the reasons a
battered wife stays in a violent relationship are both complex and numerous"); Sarah M.
Buel, Fifty Obstacles to Leaving, A.K.A., Why Abuse Victims Stay, COLO. LAW., Oct. 1999, at
19 (citing Barbara Hart, National Estimates and Facts About Domestic Violence, NCADV
VOICE, Winter 1989, at 12). See generally Martha R. Mahoney, Legal Images of Battered
Women: Redefining the Issue of Separation, 90 MICH. L. REv. 1, 6-7 (1991); Videotape:
Defending Our Lives (Cambridge Documentary Films, Inc. 1993).



184 Columbia Journal of Gender and Law [Vol. 17:2

One would like to think that the outcome in Rahn v. Norris is
atypical of cases involving requests for prison visitation in the face of
extreme acts of violence against women. There is, however, little consensus
among the jurisdictions and even within state trial courts regarding this
issue. Some courts grant visitation in cases of extreme acts of domestic
violence, viewing visitation as a right of non-residential parents. 95

Conversely, other courts deciding visitation cases involving extreme acts of
violence find that prison visitation is not in the best interest of the child.96

93 See infra notes 265-67 and accompanying text for a consideration of trauma

bonding.
94 See infra Part V.C.

95 For a consideration of cases that award prison visitation in the face of extreme
acts of violence, see N.M.M. v. J.W.M., No. CN0O-07147, 2002 WL 32101256, at *2 (Del.
Fam. Ct. Dec. 18, 2002) (ordering prison visits to a batterer despite evidence that he
strangled and threatened the other parent, as well as doused her car with gasoline and blew it
up in her driveway); McNeeley v. McNeeley, 45 S.W.3d 876, 878 (Ky. Ct. App. 2001)
(vacating and remanding the trial court's order granting visitation to an imprisoned father
who had "brutally killed" the son of his girlfriend by "beating and stomping him" to death,
given evidence from the father's conviction showed that the father was also abusive to the
children at issue, and noting that the trial court's record was devoid of the facts of father's
incarceration or abuse to his children); Charles G. v. Deborah G., No. CN93-08910, 1999
WL 486584 (Del. Fam. Ct. Mar. 30, 1999) (ordering prison visitation for the two youngest
children but not the oldest daughter as a result of the oldest daughter's testimony that she
recalled media coverage of her father's rape of her mother and that "there were allegations
that he had tried to kill Mother," instead, giving the oldest daughter the choice to visit with
her father in prison and ordering that, upon his release from incarceration, the father be
permitted supervised visitation); In re Taylor, No. CK-91-4685, 1994 WL 811731 (Del.
Fam. Ct. Feb. 15, 1994).

96 For a look at cases that deny prison visitation in light of domestic violence, see

Trombley v. Trombley, 301 A.D.2d 890 (N.Y. App. Div. 2003) (denying prison visitation
request by a father who had a history of abusing the mother of his child, as well as his recent
live-in girlfriend); S.R. v. C.B., No. CN97-06515, 2002 WL 32101266 (Del. Fam. Ct. Dec.
27, 2002) (denying a perpetrator's request for prison visitation). According to the facts of
S.R., the father was convicted of "assault third" for acts of abuse against mother. S.R., 2002
WL 32101266, at *2. Additionally, there was evidence that the child had visited with father
at the prison prior to the court's order and as a result the child's behavior was negatively
affected by those visits. S.R., 2002 WL 32101266, at *1. It is unclear from the court's
decision, however, which factor was the basis of the court's denial of visitation. S.R., 2002
WL 32101266; see also Beverly v. Bredice, 299 A.D.2d 747 (N.Y. App. Div. 2002)
(affirming denial of visitation where the father broke into the mother's apartment in violation
of a protection order, threatened her, and subsequently called threatening to shoot her);
Bougor v. Murry, 283 A.D.2d 695 (N.Y. App. Div. 2001) (denying prison visitation given
evidence of abuse to the mother while she was pregnant, as well as recent physical abuse to
the child during a scheduled prison visit); Hadsell v. Hadsell, 249 A.D.2d 853, 854 (N.Y.
App. Div. 1998) (denying visitation based on the father's attempt to kill the mother and



2008] Do No Harm

Some have argued that there is evidence to suggest that prison
visitation has a positive correlation with a prisoner's success upon release
from incarceration. 97 This Article supports the view that many incarcerated
parents should be granted access to their children. The desire to rehabilitate
prisoners, however, should not outweigh the need for child protection. In no
other circumstance would the legal system require a victim to visit the
perpetrator in prison, but that is in essence what happens in some cases
when courts require a child to visit an incarcerated batterer. Even scholars
who support the visitation rights of prisoners recognize that when the cause
of the incarceration is the result of crimes against the family, family visits
should not always take place.98 Moreover, researchers who study the effects

disregard for the child's safety); Mara C. D. v. Paul C., No. CN96-7446, 1997 WL 878688
(Del. Fam. Ct. July 25, 1997) (denying prison visitation given the incarcerated father's
repeated threats to kill mother and what the court found to be serious assaults on mother and
the children); Hughes v. Hughes, 463 A.2d 478 (Pa. Super. Ct. 1983) (affirming the trial
court's denial of incarcerated father's visitation request). The conclusion of what the Hughes
court described as a long history of abuse occurred when father broke into the mother's
residence and shot her with a hunting rifle while she held the child. In addition to his
reckless disregard for the safety of his child, the court pointed out that the father's record of
abuse to "the child's mother confirms his moral deficiency," which constituted a threat to the
child's welfare, justifying a denial of visitation. Hughes, 463 A.2d at 479.

97 Legal scholars have argued that prison visits have a positive correlation with a
"crime-free return to society." See Maldonado, supra note 42, at 196 ("The single best
predictor of successful release from prison is whether the former inmate has a family
relationship to which he can return."); Marsha M. Yasuda, Note, Taking a Step Back: The
United States Supreme Court's Ruling in Overton v. Bazzetta, 37 LoY. L.A. L. REv. 1831,
1848 (2004) (quoting Michael B. Mushlin, Rights of Prisoners § 12:1 (3d ed. 2002) (citing
Kozlowski v. Coughlin, 871 F.2d 241, 242-43 (2d Cir. 1989))); Justin Brooks & Kimberly
Bahna, "It's a Family Affair"-The Incarceration of the American Family: Confronting
Legal and Social Issues, 28 U.S.F. L. REv. 271, 277 (1994).

98 See Maldonado, supra note 42, at 197. Although Maldonado argues in support

of visitation for incarcerated fathers, the following excerpt from his article suggests prison
visitation is not always beneficial to children:

The child's best interest is always paramount. Thus, contact with an
incarcerated parent is not warranted if such contact would be detrimental
to the child, regardless of the benefit to society of lower recidivism rate.
.. . Researchers have found that, unless the incarcerated father has a
history of violence against the child or other close family, the child most
often benefits from maintaining contact.

Id.; see also Tiffany Jones, Comment, Neglected by the System: A Call for Equal Treatment
for Incarcerated Fathers and Their Children-Will Father Absenteeism Perpetuate the Cycle
of Criminality?, 39 CAL. W. L. REV. 87, 89 (2002).



Columbia Journal of Gender and Law

of parental incarceration on children and the benefits of prison visits for
both parent and child acknowledge that there are instances in which the
removal of a parent from the child's life through incarceration is
beneficial 99-specifically, when the parent engages in violent and abusive
behavior. 100 Removing an abusive parent reduces the risk of both physical
and psychological harm to the child. 101  Accordingly, if parental
incarceration diminishes risk to children exposed to intimate partner
violence, what happens when courts order prison visitation for batterers?
Unfortunately, some courts never explore the threshold question of the
crime for which the parent is incarcerated, thereby dangerously ignoring the
issue of child safety.102

III. RIGHTS VS. INTERESTS

Violation of the laws with its resulting confinement subsumes very
serious restrictions on the freedom to do many things and to
exercise many rights, the least of which is to have a normal
relationship with one's family. 103

Although many legal scholars champion the rights of incarcerated
parents 1

0
4 not all legal scholars agree that incarcerated parents have a rightto visitation. In particular, Professor David Meyer argues that in the case of

99 Karen Laing & Peter McCarthy, Risk, Protection and Resilience in the Family
Life of Children and Young People with a Parent in Prison: A Literature Review 24 (Econ.
& Soc. Research Council, Working Paper, undated), http://www.pcrrd.group.shef.ac.uk/
workingjpapers/newcastleworking_paper.pdf

100 Id.

101 Id.

102 See infra Part V.A.

103 Sullivan v. Shaw, 650 A.2d 882, 886 (Pa. Super. Ct. 1994) (Tamilia, J.,

dissenting).

104 See Maldonado, supra note 42; Brooks & Bahna, supra note 97; Pamela Lewis,
Comment, Behind the Glass Wall: Barriers that Incarcerated Parents Face Regarding the
Care, Custody and Control of Their Children, 19 J. AM. AcAD. MATRIMONIAL LAW. 97
(2004); Yasuda, supra note 97, at 1831; Jones, supra note 98; Benjamin Guthrie Stewart,
Comment, When Should a Court Order Visitation Between a Child and an Incarcerated
Parent?, 9 U. CHI. L. SCH. ROUNDTABLE 165 (2002); Rachel Sims, Note, Can My Daddy
Hug Me?: Deciding Whether Visiting Dad in a Prison Facility is in the Best Interest of the
Child, 66 BROOK. L. REv. 933 (2001). See generally GABEL & JOHNSTON, supra note 10.

186 [Vol. 17:2



2008] Do No Harm 187

prison visitation, judges "[h]av[e] taken too seriously the Supreme Court's
fundamental rights rhetonc. ' 5 Moreover, a court's decision to grant or
deny visitation to an incarcerated perpetrator of domestic violence also
affects the rights of the custodial parent 0 6 and the child. 107

Generally, our courts seem divided on the issue of a parental right
to visitation. Some courts view visitation as a liberty interest protected by
the Constitution 0 8 while others see visitation as a less compelling interest
than custody itself.'0 9 In the case of incarcerated parents in particular, some
courts have gone as far as finding that the commission of a crime resulting
in incarceration "subsumes very serious restrictions on the freedom to do
many things and to exercise many rights, the least of which is to have a
normal relationship with one's family."" 0 In contrast, other courts have
held that a parent's right to visit with his or her child is a "natural right"'
that "incarceration, standing alone, does not render ... inappropriate.""' 12

105 David Meyer, The Paradox of Family Privacy, 53 VAND. L. REv. 527, 529-30

(2000).
106 Although beyond the scope of this Article, one must conclude the residential

parent has or will receive sole custody of the child or children at issue in the visitation
matter. Most states provide that courts take acts of domestic violence into consideration
when making custody determinations. See Linda D. Elrod & Robert G. Spector, A Review of
the Year in Family Law: Parentage and Assisted Reproduction Problems Take Center Stage,
39 FAM. L.Q. 879, 918 (2006) (providing a chart of the custody criteria in the fifty states).

107 See infra note 315 (discussing the role of the child).

108 Sullivan, 650 A.2d at 884 (citing Santosky v. Kramer, 455 U.S. 745 (1982)).

Relying on the United States Supreme Court's decision in Santosky v. Kramer, the court in
Sullivan held that visitation is a liberty interest protected by the Constitution. In Santosky,
however, the Supreme Court considered a fundamentally different issue altogether. The
Court was faced with the termination of a parent's rights, a final and everlasting end to the
parent-child relationship. Santosky, 455 U.S. at 753-54 (explaining that "persons faced with
forced dissolution of their parental rights have more critical need for procedural protections
than do those resisting state intervention into ongoing family affairs"). To extend Santosky to
a limitation on one's interest in visitation with a child misconstrues the intent and meaning of
the Court's reasoning. The Court spoke of a parent's fundamental liberty interest in the
"care, custody, and management" of his or her child, not in a parent's entitlement to
visitation. Santosky, 455 U.S. at 753-54.

109 Brittain v. Hansen, 451 F.3d 982, 992 (9th Cir. 2006) (considering whether a
parent has a liberty interest in court-ordered visitation).

"o Sullivan, 650 A.2d at 886 (Tamilia, J., dissenting); see also In re Brewer, 760

P.2d 1225 (Kan. Ct. App. 1988).

"' Harmon v. Harmon, 943 P.2d 599, 604 (Okla. 1997). The Harmon court stated:



188 Columbia Journal of Gender and Law [Vol. 17:2

The distinction between the State's attempt to end the parent-child
relationship permanently and its attempt to halt contact between parent and
child provisionally is crucial to a constitutional analysis of incarcerated
parents' liberty interest in visitation rights. Assertions of constitutional
protections favoring a parent's right to visitation appear to stem primarily
from Supreme Court precedent regarding the termination of the parent-child
relationship,' t 3 not the ability of a parent to visit with his child., 14 In fact,
there is support to suggest that, as yet, no visitation deprivation has risen to
the level of a constitutional violation. 1 5

In Brittain v. Hansen, the United States Court of Appeals for the
Ninth Circuit considered whether a parent has a liberty interest in court-
ordered visitation.' 1 6 The court explained that it is "long-settled that
custodial parents have a liberty interest in the 'companionship, care,
custody, and management' of their children."'"17 What was less clear to the
court was whether a non-custodial parent has a similar liberty interest in his

[T]his Court has ruled that the natural right of a divorced parent to visit
his/her minor child should not be taken away unless evidence shows the
parent has forfeited this right or the exercise of it would be detrimental to
the child's welfare .... Although, in our view, a parent has no absolute
right to visitation with a minor child in a correctional facility, each case
involving visitation issue(s) must be made on the factual situation
involved on a case-by-case basis, always keeping in mind the paramount
importance of what is in the best interest of the child.

Id.

112 Rhynes v. Rhynes, 242 A.D.2d 943 (N.Y. App. Div. 1997).

113 See generally Meyer, supra note 7.

114 Sullivan, 650 A.2d at 884 (citing Santosky v. Kramer, 455 U.S. 745 (1982)).

115 Zakrzewski v. Fox, 87 F.3d 1011, 1014 (8th Cir. 1996). According to the
Eighth Circuit, although there is a possibility that intrusion upon a parent's visitation interest
may be subject to due process scrutiny where there is an intrusion upon a parent's interest in
"the 'care, custody, and management of their child,' . . .. we have not yet found a case where
the right to visitation was infringed in a manner that rose to the level of a constitutional
violation." Id. Zakrzewsri suggested that to rise to the level of a substantive due process
violation of one's "parenting liberty interest," the violation must occur "in a manner that
shocks the conscience." Id

116 Brittain v. Hansen, 451 F.3d 982, 992 (9th Cir. 2006).

117 id



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or her right to visitation.' 18 Referring to Zakrzewski, as well as other
decisions, the court in Brittain noted that most federal circuits that have
previously addressed a parent's right to visitation found that "some liberty
interest exists." 119 Of particular significance, however, was the court's
recognition of "the obvious reality that visitation is a lesser interest than
legal custody.' 20 Brittain suggests that a parent's liberty interest in
visitation should not be considered in a vacuum; it must be balanced with
the liberty interests of others, namely the custodial parent and the children.

It is important to point out that the issue in Brittain did not relate to
an inmate's request for prison visitation with his or her child. Moreover,
unlike the dilemma presented in this Article, Brittain involved a parent who
had already been granted visitation by court order after a trial court
determined visitation was appropriate. The question before the court was
"whether Brittain had a liberty interest in her court-ordered visitation
rights," 121 not whether a parent has a liberty interest in visitation in the first
instance. 22 The court acknowledged that the fact that a parent's liberty
interest in visitation had not been previously addressed made the issue
presented more difficult. 23 The court, however, chose not to address the
broader issue of whether state "interference that affects the existence of
visitation rights altogether, rather than discrete instances of visitation, might

118 Id. ("We have not had occasion to decide whether parents who have visitation

rights, but lack legal custody, have a similar liberty interest.").

119 Id. (citing Zakrzewski, 87 F.3d at 1013-14; Franz v. United States, 707 F.2d

582, 594-602 (D.C. Cir. 1982); Wise v. Bravo, 666 F.2d 1328, 1331-33 (10th Cir. 1981)).

120 Id. at 992. Although the custodian of the children in cases of parental

incarceration is not always the other parent, for the purposes of this Article the custodian is
presumed be the battered parent.

121 id.

122 The case involved a dispute between Hansen (the father) and Brittain (the

mother) over a particular visit the mother wished to exercise with the child. Id. at 985. Prior
to the dispute at issue, the father was granted sole custody and the mother was awarded
court-ordered visitation with her son. Id. The parties had a dispute over the mother's right to
a week-long visit with the child. Id. at 986. As a result of the dispute, a police officer was
called to the scene. Id. The officer ordered the mother to turn over the child after a great deal
of discussion, attempts to interpret the court order, and contact with the officer's
commander. Id. at 986-87. Subsequently, the mother filed suit claiming the father and the
police conspired to violate her due process rights relating to her interest in visitation with her
child. Id.

123 Id. at 992 n.2.

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Columbia Journal of Gender and Law

give rise to a viable claim."' 124 The court viewed the issue at bar as a narrow
one: a brief deprivation. 25 One week of lost visitation in the court's eyes
was not significant, or in the court's words, failed to rise to the level of
"conscience shocking."' 6 Had there been actions that shocked the
conscience, a parent still would have to show that some liberty interest
existed upon which the state intruded. 127

The Brittain court explained that in resolving the case it followed
the Supreme Court's mandate "to 'avoid constitutional issues when
resolution of such issues is not necessary for disposition of a case."",128 The
court acknowledged that in doing so it left open the issue of whether child
custody disputes, unlike the permanent termination of a parent's rights, may
give rise to substantive due process claims. 129 Therefore, whether visitation
is an inherent right to which a non-custodial parent is entitled or whether it
is simply an interest to be considered remains unresolved.

Notwithstanding the constitutional debate, few would dispute that a
parent generally has an interest in visitation with his or her child. The extent
of that interest, however, depends on the facts and circumstances of the
particular case.130 This Article addresses a specific group of parents seeking
contact with children: parents incarcerated as a result of horrific acts of
violence against another parent or household member. Admittedly, not all
children are negatively affected by exposure to domestic violence.' 3' Cases
that involve "extreme acts" of violence, however, call for special attention

124 Id. at 995-96.

25 Id. at 996.

126 Id. The court explained that in order to find that the government deprived an

individual of his or her liberty interest, the acts must rise to a level "which shocks the
conscience." Id. at 991 (citing Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

127 Id. (citing Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 948 (9th Cir.

2004)).

128 Id. at 996 (quoting In re Snyder, 472 U.S. 634, 642 (1985)).

129 id.

130 Zakrzewski v. Fox, 87 F.3d 1011, 1014 (8th Cir. 1996) (explaining that no right

is absolute).

131 Based on comments to this article by Leigh Goodmark, Professor, University of

Baltimore School of Law (Aug. 14, 2007) (referring generally to Jeff Edleson's research on
children exposed to domestic violence). See generally Edleson, Child Maltreatment and
Domestic Violence, supra note 30, at 104.

[Vol. 17:2



Do No Harm

from our justice system. Courts must acknowledge that children exposed to
extreme acts of violence may be at increased risk of trauma. Moreover,
these at-risk children must be properly assessed and protected when
necessary.

Although incarceration alone may not justify a denial of visitation,
some cases of parental incarceration warrant a closer look. In re Taylor is
one case that involves both extreme violence and parental incarceration., 32

At the time of the visitation hearing the father in this case was serving a
two-year prison sentence for raping his child's natural mother.' 33 During the
trial, the mother testified "although Mr. F. [the child's father] raped her, she
did not believe that any emotional trauma she may suffer as a result of the
minor children visiting with Mr. F would emotionally harm the children or
be transferred unto the children" and she would not object to contact if the
father were not incarcerated. 134 Relying on the mother's testimony, the court
granted the father's request for visitation at the correctional facility every
other week. 35 There is, however, no indication that any expert testimony
was taken or that the children underwent evaluation for possible
psychological trauma prior to the court's entry of the visitation order. In
fact, as a result of the mother's testimony, the court maintained it had "no
choice but to grant the natural father's Petition for Visitation."' 36 The

132 In re Taylor, No. CK-91-4685, 1994 WL 811731, at *1 (Del. Fam. Ct. Feb. 15,

1994) (citing Elizabeth A.S. v. Anthony M.S., 435 A.2d 721 (Del. 1981)). The court stated:

The Court notes that 13 Del. C. 728(a) creates a presumption in favor of
visitation for any non-custodial parent. Further, 728(a) shifts the burden
of proof from the non-custodial parent to the custodial parent to prove
that unrestricted visitation "would endanger the child's physical health or
significantly impair his or her emotional development."

Id.

133 Id. The court noted father's testimony:

[The father] is currently in prison, serving a two-year sentence for rape
of the natural mother . . . .[H]e would like to have visitation with his
three minor children, twice a month, at the prison . . . . [H]e wants
visitation with the three children so that they can build a relationship and
the children will know who he is upon his release.

Id.

134 Id. at *2.

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135 id.



192 Columbia Journal of Gender and Law [Vol. 17:2

court's view that the statements of a potentially traumatized victim tied its
hands is remiss. Basing a judicial determination regarding childhood trauma
primarily on the testimony of a parent (possibly traumatized herself),
ignores both the mother's tragedy and the court's ability to seek guidance
from a vast array of experts, sua sponte.137 In addition, the opinion fails to
consider the rights and interests of the children at issue completely. 138

Two years prior to the trial court's decision in Taylor, Delaware's
highest court held that although "a non-custodial parent's right to visitation
is an important, natural and legal right ... it is not an absolute right but 'one
which must yield to the good of the child."",139 In Winter v. Charles, the
Supreme Court of Delaware affirmed the trial court's denial of an
incarcerated father's visitation request, establishing that the child's interests
are paramount. In its decision, the court explained that the child's best
interest should be "the ultimate test for visitation" determinations. 140

Justice Stevens, in his dissenting opinion in Troxel, suggests that
courts should not be quick to afford protection to parents when doing so
would allow parents to exercise those rights contrary to the child's best
interest.'4' To address both Stevens' concern and the challenges raised

137 Although beyond the scope of this Article, the ability of a victim of marital rape
or intimate partner violence to communicate statements directly adverse to the father of her
children safely in court is an issue of concern. See generally Mary Ann Dutton, The
Dynamics of Domestic Violence: Understanding the Response from Battered Women, 68
FLA. B.J. 24, 24 (1994) (explaining that a special relationship exists between abusers and
survivors of intimate partner violence because the victim learns to read the abuser's actions,
the meaning of which "extends far beyond what is being said or done in the moment"). See
also Dana Harrington Conner, To Protect or to Serve: Confidentiality, Client Protection and
Domestic Violence, 79 TEMP. L. REV. 877 (2006) (expanding on Dutton's theory about the
unique relationship between batterers and their victims); Harrington Conner, supra, at 879
n.6 (noting that according to Dutton, "[t]he victim learns that a certain look from the
perpetrator may mean that she is in significant danger if she does not conform to his wishes,
for the battered woman it is this simple act that alters her behavior in such significant ways"
(citing Dutton, supra, at 24)).

138 See infra note 315 for a discussion of the role of the child.

139 Winter v. Charles, No. 237,1991, 1992 WL 53404 (Del. Feb. 3, 1992).

140 Id. at *1 (citing Rogers v. Trent, 594 A.2d 32, 33 (Del. 1991) (quoting

Elizabeth A.S. v. Anthony M.S., 435 A.2d 721, 725 (Del. 1981))).

141 Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting). Justice
Stevens suggests that children also have constitutionally protected rights:

While this Court has not yet had occasion to elucidate the nature of a
child's liberty interests in preserving established familial or family-like
bonds ... it seems to me extremely likely that, to the extent parents and



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herein we must determine whether the exercise of one's parental rights,
which results in prison visitation between a perpetrator of extreme acts of
violence and a minor child, is "motivated by an interest in the welfare of the
child"' 142 or by selfish desire. 14 3

According to Bancroft and Silverman, "[t]he overarching
attitudinal characteristic of batterers is entitlement."' 144 Bancroft and
Silverman base their conclusions on over twenty years of research and
clinical experience working with perpetrators of intimate partner
violence.1 45 They find that batterers tend to place themselves first and all
other family members last 146 and that batterers often seek visitation as a way
of either gaining access to the victim or exerting control over her. 147 In
accordance with Bancroft and Silverman's conclusions, an incarcerated
batterer may seek visitation primarily out of self-interest and not because it
is best for his children.

families have fundamental liberty interests in preserving such intimate
relationships, so, too, do children have these interests, and so, too, must
their interests be balanced in the equation.

Id.
142 Id. at 89.

143 Some parents may be conflicted between doing what is best for the child and
desiring continued contact. When a parent requests visitation contrary to the best interest of
the child, it is difficult to view that decision as primarily motivated by anything other than
self-interest.

144 BANCROFT & SILVERMAN, supra note 61, at 7. They explain entitlement in
batterers in the following way:

Entitlement is the belief that one has special rights and privileges without
accompanying reciprocal responsibilities. Batterers tend to have this
orientation in specific relationship to their partners and children and do
not necessarily carry it over into other contexts . . . . A primary
manifestation of entitlement is that batterers expect family life to center
on the meeting of their needs .... They may believe that they are owed
services and deference without regard to their own level of contribution
or sacrifice.

Id.

14" Id. at 2-3.

146 Id. at 9 (noting that "our clients perceive their needs as being of paramount

importance in the family").

1471 d. at 110-15.

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Columbia Journal of Gender and Law

Putting aside the likelihood that the perpetrator of extreme acts of
violence selfishly seeks visitation to contact or control the other parent,
visitation still may not be warranted in such cases. The perpetrator's
motivation is just one aspect to consider in prison visitation determinations.
Notwithstanding the interests of the incarcerated parent, a child's interests
must also have a place in the framework of this legal analysis. Not all courts
view visitation as an exclusive right held solely by the nonresidential
parent. According to the New York Family Court in John R. v. Marlene C.,
"visitation is a right jointly shared by parent and child, intended to benefit
both., 148 If true, then children have an inherent right not to visit with a
harmful parent if they derive no benefit and, in fact, would be injured by
further contact. 149

Even those who maintain that children have few rights when it
comes to the issue of visitation cannot so easily deny that children have an
interest in the court's ultimate visitation determination. Courts must,
however, approach the declaration of a child very carefully, given the
possibility that the batterer may attempt to influence the child's expressed
wishes.150 As a result, courts should carefully weigh the wishes of the
parents and children in light of the nature of the crime for which the parent
is incarcerated. 151 Regrettably, trial courts often fail to consider the type of
crime for which a parent is imprisoned and how such crimes shape the
child's emotional and physical welfare. 52

Finally, the right of a survivor of extreme acts of violence to object
to forced prison visitation has received little legal scholarly attention.' 53

Balancing the interests of parents in prison visitation cases presents a

148 John R. v. Marlene C., 683 N.Y.S.2d 724, 728 (Fam. Ct. 1998); see also

Valenza v. Valenza, 143 A.D.2d 860, 862 (N.Y. 1988) (explaining that visitation is a
"natural right" that is "jointly enjoyed" by both the parent and the child).

149 The Tennessee Court of Appeals in Arnold v. Arnold maintained that although

nonresidential parents are usually granted visitation, visitation is a privilege, not a right.
Arnold v. Arnold, 774 S.W.2d 613, 618 (Tenn. Ct. App. 1989). The Court explained that the
privilege to visit with one's child depends on a showing that it is beneficial to the child and
that the "enforcement of 'visitation' is not justified where it results in injury to rather than
enforcement of the best interests of the child or children." Id.

5 0 See infra Part V.B.

151 See infra Part V.A.

'
52 See infra Part V.C.

153 Although beyond the scope of this Article, custodial survivors have a

significant liberty interest in the care and control of their children.

[Vol. 17:2



Do No Harm

distinct dilemma in the area of individual rights against state intervention. 15 4

If we follow the court's logic in Brittain, that the right to "visitation is a
lesser interest than legal custody," '155 a survivor, as the custodial parent,
should be vested with the authority to determine what is best for her child in
the case of a prison visitation request. State interference in the form of
court-ordered prison visitation over the objection of a survivor-parent can
be considered a violation of the survivor's liberty interest in the care of her
child. 156 As such, custodial parents should be able to prevent visitation in
favor of incarcerated batterers when such orders are contrary to the
wellbeing of the child.

If we concede that incarceration alone may not justify a denial of an
individual's interest in a continuing relationship with his or her children, we
can move to the fundamental issues in our analysis. First, no right is
absolute. 157 Second, there are multiple interests and rights to be balanced.
Third, incarcerated perpetrators of extreme acts of violence and their
children are special and demand individualized attention.

IV. IN SEARCH OF A STANDARD

[Wihen the child's welfare seems to conflict with the claims of one
or both parents, the child's welfare must prevail .... But having
made the statement, few if any experienced judges or lawyers think
that goes very far toward deciding cases. That can only be done by
considering the facts of the individual case against the background
offactors held to be relevant in earlier cases, and most importantly,
with the awareness of the biases which the judge brings to his
deliberations . . . The best interest ideal is not to be taken too
literally for another reason. The child's interests are not the only
consideration to be taken into account in every circumstance, even
though some non-legal writers think that they are.158

154 Meyer, supra note 7, at 1475.

155 Brittain v. Hansen, 451 F.3d 982, 992 (9th Cir. 2006). The court in Brittain held
that "non-custodial parents with court-ordered visitation rights have a liberty interest in the
companionship, care, custody, and management of their children. Such an interest is
unambiguously lesser in magnitude than that of a parent with full legal custody." Id.

156 Meyer, supra note 105, at 555.

157 Zakrzewski v. Fox, 87 F.3d 1011, 1014 (8th Cir. 1996).

158 HOMER H. CLARK, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES

788-89 (2d ed. 2000). Clark's quote speaks specifically to custody determinations, although
it readily applies to visitation determinations as well.

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196 Columbia Journal of Gender and Law [Vol. 17:2

The question of what legal standard to use in cases involving
visitation between incarcerated perpetrators of extreme acts of violence is
not clear cut. Some courts hold that the best interest of the child is
paramount, 159 while others find visitation is an automatic right that can not
be denied short of a showing of harm to the child. 160

A. The Court's Choice: Balancing the Interests of Parents and
Children

The proper standard for visitation determinations is not clear.
Although the best interest standard often establishes the nature and extent of
visitation, 16 some courts maintain that it is not the proper standard for a
denial of visitation.' 62 These decisions suggest that visitation between
parent and child is presumed to be best for children absent an extraordinary
showing that contact is harmful to the child. 163 The Moore v. Moore court in
particular made clear that "imprisonment of a parent for a term of years

159 Hadsell v. Hadsell, 249 A.D.2d 853 (N.Y. App. Div. 1998).

160 John R. v. Marlene C., 683 N.Y.S.2d 724, 727 (Fam. Ct. 1998) (involving

intimate partner homicide).

161 Id. at 75 (suggesting the best interest standard is appropriately used to

determine the nature and extent of visitation).

162 Id. According to the court in John R., visitation is a parental right absent a

showing of "extraordinary circumstances." Id. Furthermore, a complete denial of visitation is
rare. Id.

163 See Meece v. Meade, No. 2005-CA-001510-ME, 2006 WL 1195929 (Ky. Ct.

App. May 5, 2006). In Meece, the court maintained that it was error for the trial court to use
a best interest standard in making visitation determinations, when the proper standard is a
"'non-custodial parent cannot be denied reasonable visitation with his or her child unless
there is a finding that visitation will seriously endanger the child."' Id. at *4 (citing Smith v.
Smith, 869 S.W.2d 55, 56 (Ky. Ct. App. 1994)); see also KC v. MC, No. CN99-10809, 2005
WL 4024848 (Del. Fain. Ct. July 20, 2005). In KC v. MC, the court presumed visitation was
in the best interest of the child absent a showing of harm. KC, 2005 WL 4024848. The court
explained, however, that case law suggests the best interest of the child is an additional
consideration beyond a showing that visitation would not be harmful to the child. KC, 2005
WL 4024848 at *11 (citing Capri M.P. v. Ronald 0., 480 A.2d 669 (Del. Fain. Ct. 1984)). In
KC v. MC, the father was charged with unlawful sexual intercourse and unlawful sexual
contact related to acts against his stepdaughter. The father was incarcerated and later placed
on probation for unlawful sexual contact in the second degree. KC, 2005 WL 4024848, at * 1;
see also Moore v. Moore, No. 04CAI 11, 2005 WL 1924346, at *1 (Ohio Ct. App. Aug. 11,
2005).



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constitutes 'extraordinary circumstances,"' and once established, visitation
depends on the best interest of the child. 64

Judges wrestle with visitation requests given the competing
interests of children and their parents. One decision in particular, John R. v.
Marlene C., suggests that visitation is not just a parent's right, but a right
which is shared by the child-a child whose interests are paramount. 165

Judges making visitation determinations often overlook the importance of
the emotional wellbeing of the primary custodian and the overall stability of
child's home environment in evaluating the child's best interests. In Casper
v. Casper, the Supreme Court of Nebraska upheld a trial court's finding that
the best interest of a child in part "lay in the establishment of a stable home
environment."'1 66 The Nebraska high court refused to overturn the trial
court's denial of prison visitation given the lower court's findings that such
visits were of little benefit to anyone other than the inmate and caused
turmoil in the home following visitation. 167

The Nebraska court is not alone in viewing a stable home
environment as paramount to the child. According to Domestic Violence
and Child Custody Disputes: A Resource Handbook for Judges and Court
Managers, court orders for both custody and visitation should reflect the
safety of the child and abused spouse, as well as "create a stable
environment for the children."'1 68 The handbook suggests that judges should
initially consider whether visitation should be ordered at all, and only after
a determination of the appropriateness of visitation should a hearing officer
make a determination of whether visitation may occur safely.1 69

B. Application of the Best Interest Standard

If we presume that the principal goal of all judicial determinations
regarding a child should be what is best for that child, our next step is to

'64 Moore, 2005 WL 1924346, at *1 (citing Pettry v. Pettry, 486 N.E.2d 213 (Ohio
Ct. App. 1984)).

165 John R., 683 N.Y.S.2d at 728.

166 Casper v. Casper, 254 N.W.2d 407, 409 (Neb. 1977).

167 id.

168 NAT'L CTR. FOR STATE COURTS, DOMESTIC VIOLENCE AND CHILD CUSTODY

DISPUTES: A RESOURCE HANDBOOK FOR JUDGES AND COURT MANAGERS 47 (1997).

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198 Columbia Journal of Gender and Law [Vol. 17:2

begin the delicate process of applying a standard.17 0 According to Black's
Law Dictionary, the best interest of the child is:

A standard by which a court determines what arrangements
would be to a child's greatest benefit, often used in deciding
child-custody and visitation matters .... A court may use many
factors, including the emotional tie between the child and the
parent or guardian, the ability of a parent or guardian to give the
child love and guidance, the ability of a parent or guardian to
provide necessaries, the established living arrangement between a
parent or guardian and the child, the child's preference if the
child is old enough that the court will consider that preference in
making a custody award, and a parent's ability to foster a healthy
relationship between the child and the other parent.' 71

Many of the "best interest" standards that states utilize are the same
for both custody and visitation, despite the different questions these distinct
legal issues present.17 2 According to Nancy K.D. Lemon, "custody and
visitation greatly overlap; often there is no clear dividing line between
them."' 173 The Uniform Marriage and Divorce Act § 402, designed to codify
the best interest standard in most jurisdictions, provides that the court shall
consider all relevant factors in making custody determinations, including
the following factors:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his
parent or parents, his siblings, and any other person who may
significantly affect the child's best interest;

170 Although there will be other goals and interests for the court to consider when

making visitation determinations, the paramount goal must be what is best for the child.

T1' BLACK'S LAW DICTIONARY 170 (8th ed. 2004) (defining "best interests of the
child").

172 Custody relates to decision-making powers whereas visitation provides for

access to and time spent with the child.

173 NANCY K.D. LEMON, DOMESTIC VIOLENCE & CHILDREN: RESOLVING CUSTODY

AND VISITATION DISPUTES 57 (1995).



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(4) the child's adjustment to his home, school and community;
and

(5) the mental and physical health of all individuals involved. 174

C. Domestic Violence as a Best Interest Factor

Although not expressly listed in § 402, most states also require
courts to consider evidence of domestic violence when making
determinations in the best interest of the child.1 75 Some states codify
particular factors for courts to consider, while other states rely on case law
to guide judges in the interpretation of what to consider in making best
interest determinations. For example, Connecticut lists sixteen factors for
courts to consider in making best interest determinations regarding the
custody, care, education, visitation, and, support of children. 76 The list

174 The Uniform Marriage and Divorce Act § 402, 9A UNIF. L. ANN. (Part 2) 282
(1998).

175 See Elrod & Spector, supra note 106.

176 See CONN. GEN. STAT. ANN. § 46b-56(c) (West 2004). According to

Connecticut law the court may consider, in assessing the best interest of the child, the
following factors:

(1) The temperament and developmental needs of the child;

(2) the capacity and disposition of the parents to understand and meet the
needs of the child;

(3) any relevant and material information obtained from the child,
including the informed preferences of the child;

(4) the wishes of the child's parents as to custody;

(5) the past and current interaction and relationship of the child with
each parent, the child's siblings and any other person who may
significantly affect the best interest of the child;

(6) the willingness and ability of each parent to facilitate and encourage
such continuing parent-child relationship between the child and the other
parent as is appropriate . ..

(7) any manipulation by or coercive behavior of the parents in an effort
to involve the child in the parents' dispute;

(8) the ability of each parent to be actively involved in the life of the
child;



200 Columbia Journal of Gender and Law [Vol. 17:2

specifically enumerates domestic violence; however, the statute explicitly
states that "[t]he court is not required to assign any weight to any of the
factors that it considers."' 77 On the other hand, Pennsylvania's statute
provides for general considerations, including domestic violence, but does
not list all factors to be addressed. 178 Lawyers in Pennsylvania must look to
case law for guidance regarding the factors courts will consider. 179

(9) the child's adjustment to his or her home, school and community
environments;

(10) the length of time that the child has lived in a stable and satisfactory
environment...

(11) the stability of the child's existing or proposed residences, or both;

(12) the mental and physical health of all individuals involved...

(13) the child's cultural background;

(14) the effect on the child of the actions of an abuser, if domestic
violence has occurred between the parents or between a parent and
another individual or the child;

(15) whether the child or a sibling of the child has been abused or
neglected ... ; and

(16) whether the party satisfactorily completed participation in a
parenting education program ....

Id.

177 id.

178 23 PA. CONS. STAT. ANN. § 5303 (West 2003). Award of custody, partial

custody or visitation

(a) General rule.-

(1) In making an order for custody or partial custody, the court shall
consider the preference of the child as well as any other factor which
legitimately impacts the child's physical, intellectual and emotional well-
being.

(2) In making an order for custody, partial custody or visitation to either
parent, the court shall consider, among other factors, which parent is
more likely to encourage, permit and allow frequent and continuing
contact and physical access between the noncustodial parent and the
child.

(3) The court shall consider each parent and adult household member's
present and past violent or abusive conduct which may include, but is not



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Despite the fact that many jurisdictions consider evidence of
domestic violence as a factor in judicial determinations affecting
children, 180 employing the best interest standard as states presently define it
may pose problems in domestic violence visitation cases in general, and
prison visitation in particular. The problem with the best interest standard
may be in both its structure and its application. In applying the best interest

standard, some believe that our legal system is making determinations that
balance the interests of the parents with those of the child, 181 resulting in an

outcome that is not always best for the child. Such criteria may be
acceptable in cases in which parents seek what is best for their children;
however, this is not so in cases in which parents are motivated by other
interests. 82

When the needs of a child conflict with the wishes of a parent, what
is best for the child may not always be the guiding principle in the court's
resolution of the matter. According to Martha Albertson Fineman, the
Deskbook, which provides direction to judges in family law matters, offers

surprising guidance to our judicial officers.' 83 The Deskbook suggests that
visitation in the face of domestic violence may in fact be acceptable.' 84

limited to, abusive conduct as defined under the act of October 7, 1976

(P.L. 1090, No. 218), known as the Protection From Abuse Act.

Id.

179 See EMANUEL A. BERTIN, PENNSYLVANIA CHILD CUSTODY LAW, PRACTICE, AND

PROCEDURE § 1.1.1 (1983) (citing Gerald G. v. Theresa G., 426 A.2d 157 (Pa. Super. Ct.
1981)). Bertin explains that although the best interest standard is a "nebular term," in
Pennsylvania the factors "most frequently presented for analysis include the character and
fitness of the parties seeking custody, the nature of the proposed custodial homes, the child's
preference, the parenting abilities and inclinations of the contestants, and the ability of each
party to provide financially for the child." Id.

180 See Charts, 40 FAM. L.Q. 591, 593 chart 2 (2007) ("Custody Criteria").

181 See CLARK, supra note 158, at 788-89.

182 See Donna J. Jitchens & Patricia Van Horn, The Court's Role in Supporting and

Protecting Children Exposed to Domestic Violence, 6 J. CTR. FOR FAMS., CHILD. & CTS. 31,
39-40 (2005) (explaining that it is a fallacy to assume that parents, in the context of domestic
violence, act in the best interest of their children).

183 Fineman, supra note 25, at 221.

184 ROBERT J. LEVY, NATIONAL INTERDISCIPLINARY COLLOQUIUM ON CHILD

CUSTODY, LEGAL AND MENTAL HEALTH PERSPECTIVE ON CHILD CUSTODY LAW: A DESKBOOK

FOR JUDGES 112-13 (1998). Levy states:

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202 Columbia Journal of Gender and Law [Vol. 17:2

Such guidance is likely to result in judicial determinations based on the
wishes of the parent rather than the needs of the child.

Precise guidance in assessing what is in the best interest of children
of incarcerated batterers could resolve some concerns. The answer may be
found in the weight given to certain factors, as well as some fine-tuning of
those factors. According to the Model Code on Domestic and Family
Violence, the safety and welfare of the child-as well as of the battered
parent-must have the greatest weight, "above all other 'best interest
factors"' the court considers.185 The Model Code's requirement that the
"domestic violence factor" possess the greatest weight fails to answer what
in particular the judge should weigh. The Model Code speaks of the act of
violence itself, as well as fear that the violence will likely cause, 186 but does
not speak of psychological damage beyond fear that may result from
exposure to extreme acts of violence against women.

Consider Montana's best interest standard, which requires courts to
consider physical abuse or a threat of physical abuse by one parent against
the other parent or child as a factor to determine a parenting plan which is

Nonetheless, children of even the unhealthiest marital relationship need
both parents and the quality of parent-child affiliations is not always
determined by the quality of the interaction between the marital partners.
Denying an abusing spouse's visitation with his children, under many
circumstances even restricting visitation substantially, might serve to
punish the children rather than protect them.

Id.

185 NAT'L COUNCIL OF JUVENILE AND FAMILY COURT JUDGES, MODEL CODE ON

DOMESTIC AND FAMILY VIOLENCE § 402 and Commentary (1994). § 402.1 of the Model Code
provides:

1. In addition to other factors that a court must consider in a proceeding
in which the custody of a child or visitation by a parent is at issue and in
which the court has made a finding of domestic violence:

(a) The court shall consider as primary the safety and
well-being of the child and the parent who is the
victim of domestic or family violence.

(b) The court shall consider the perpetrator's history
of causing physical harm, bodily injury, assault, or
causing reasonable fear of physical harm, bodily
injury, or assault, to another person.

Id.

186 id.



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in the best interest of the child.1 1
7 The statute is silent as to how a judge is to

use evidence of domestic violence to determine its relevance to and
influence on the best interest of the child. Montana's law provides little
direction as to whether the judge should weigh the violent act or the effect
the act has on the child. The statute neither considers the need to protect the
child from further psychological damage, nor the short- and long-term
implications of acts of violence on a child's emotional well-being.'88

Similarly, Pennsylvania's statute requires courts to consider acts of
domestic violence, but does not provide guidance as to how judges should
weigh such acts or how domestic violence should alter visitation
determinations. 8 9 When an abuser is convicted of an enumerated crime,
Pennsylvania law requires that the court determine that the parent does not
pose a "threat of harm" to the child before entering a visitation order. 90

Threat of harm, however, is not defined.
Some states specifically provide that even if a court finds domestic

violence has occurred, the court may still determine that visitation with the
abusive parent is in the best interest of the child. One such state, Missouri,
fails to provide information to suggest which domestic violence acts are
contrary to the best interest of the child and which are not detrimental.' 9'

These and similar laws focus primarily on the physical safety of the
victim or the child and provide little guidance to courts on the use of
domestic violence beyond the act itself. These laws do not consider the
influence the act has on the emotional development of the child and the
implications of ordering continued contact between a child and a perpetrator
of extreme acts of violence.192 In addition, these statutes fail to address thespecial circumstances of prison visitation, the particular factors to consider,

187 MONT. CODE. ANN. § 40-4-212 (2006).

188 See discussion of trauma and children infra Part V.C.

189 23 PA. STAT. ANN. § 5303(a)(3) (West 2005).

1901d. § 5303(b).

191 30 Mo. REV. STAT. § 452.400.1(1) (West 2003).

192 In the alternative, a Maine statute requires that courts consider not only the
safety of the child but also how the existence of domestic abuse affects the child
emotionally. ME. REV. STAT. ANN. tit. 19-A, § 1653.3(L) (1998). The law does not, however,
suggest how the domestic violence factor should be weighed relative to the other eighteen
factors in determining what is in the best interest of the child. Id.

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Columbia Journal of Gender and Law

and how courts should weigh those factors in assessing prison visitation
requests.1

93

D. A Legal Presumption

Potentially, a legal presumption against prison visitation in cases of
extreme acts of violence would solve the problem.1 94 The Model Code on
Domestic and Family Violence provides that in domestic violence cases,
there shall be a rebuttable presumption against an award of sole or joint
custody to the perpetrator. 195 The Model Code does not provide a similar
presumption against visitation and is notably silent on the issue of prison
visitation. 196

In a minority of states, evidence of certain acts of domestic violence
triggers a rebuttable presumption that visitation between the abusive parent
and the child should be supervised. 97 Other states suggest that courts must
consider evidence of domestic violence when parents request supervised
visitation between an abusive parent and a child. 198 Although a step in the
right direction, these laws fail to address factual situations involving
extreme acts of violence, which may require staying any and all contact
between the abuser and child. 199

193 Recently, Delaware enacted a law addressing prison visitation separately. It

requires consideration of special factors before granting visitation to an incarcerated parent.
See DEL. CODE ANN. tit. 13, § 728(e) (1999).

194 Although rebuttable, the presumption would bar any visitation unless rebutted
and not simply provide for supervised visitation as some states mandate. See, e.g., IND. CODE
ANN. § 31-17-2-8.3 (LexisNexis 2003) (providing that if a parent is convicted of an act of
domestic violence witnessed or heard by the child at issue, "there is created a rebuttable
presumption that the court shall order that the noncustodial parent's parenting time with the
child must be supervised").

195 NAT'L COUNCIL OF JUVENILE AND FAMILY COURT JUDGES, supra note 185, at 33.

'96 Id. § 402.

197 See IND. CODE ANN. § 31-17-2-8.3.

198 See MINN. STAT. ANN. § 518.17 (West 2006) (mandating courts must consider

the entry of a protective order when a parent requests an order for supervised visitation); LA.
REV. STAT. ANN. § 9:364 (1997) (providing for supervised visitation in cases of family
violence). But see Slayton v. Slayton, 929 So. 2d 865, 871 (La. Ct. App. 2006) (citing
Michelli v. Michelli, 655 So. 2d 1342, 1346 (La. Ct. App. 1995)) (clarifying that the court
must find family violence has occurred and that there is a history of such violence for the Act
to apply).

'99 See infra Part V.D.

[Vol. 17:2



Do No Harm

V. FACTORS FOR CONSIDERATION IN PRISON VISITATION
CASES

[F]ostering children 's long-term recovery and well-being involves
both assisting them to heal from the emotionally traumatic effects of
the incidents that they have witnessed and intervening to help them
to repair and strengthen their bonds with their mothers. 200

Current standards fail to provide the specialized attention necessary
for cases involving prison visitation requests by perpetrators of extreme acts
of violence.20 1 The Supreme Court of Oklahoma in Harmon v. Harmon
explained that although an incarcerated parent does not have an absolute
right to visit with a minor child while in prison, cases must be decided on
the facts presented in each case.202 The Harmon court followed the Superior
Court of Pennsylvania's model in Etter v. Rose, which provided the
following factors to be considered when making prison visitation
determinations: (1) age of the child; (2) distance and hardship to the child in
traveling to the visitation; (3) type of supervision provided during the prison
visit; (4) individual providing transportation and type of transportation
provided; (5) emotional and physical effect on the child; (6) the
incarcerated parent's past and present interest in the child; and (7) whether
the incarcerated parent maintained reasonable contacts with the child in the
past and any other relevant matters impinging on the child's best interest.2 3

204In lieu of the final catchall factor in Etter, 2  the Harmon court added its
own eighth factor to the Etter test: the "nature of the criminal conduct" that
caused the parent's incarceration.20 5 Indeed, this is not a condition Etter
contemplates as there is no factual consideration of the underlying offenses
whatsoever in the Etter decision.

20 0 BANCROFT & SILVERMAN, supra note 61, at 82-83.

201 The factors addressed infra are suggested as an alternative to the best interest

factors currently utilized by many courts throughout the country.

202 Harmon v. Harmon, 943 P.2d 599, 604 (Okla. 1997).

203 Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super. Ct. 1996).

20o4 id.

205 Harmon, 943 P.2d at 605.

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Columbia Journal of Gender and Law

Harmon, on the other hand, reasoned that crimes related to
incarceration bear upon the court's decision-making process. 2

0
6 Harmon,

however, failed to provide a detailed analysis of how to weigh the "criminal
conduct" factor. Which crimes justify a denial of visitation, and why,
remains unclear. Still, courts that consider prison visitation regularly fail to
consider some or all of the Etter and Harmon factors. Instead, courts will
simply find that either visitation is not in the best interest of the child, or
that parents, including incarcerated parents, have a right to visitation unless
harm to the child, beyond the act that resulted in the incarceration of the
parent, can be clearly established.

To properly assess prison visitation requests for perpetrators of
extreme acts of violence against women, courts must consider the following
factors: 207 (A) nature of the crime;208 (B) parent-child relationships; 20 9 (C)

206 Id. (considering the factors to be taken into account in making a prison

visitation determination); see also id. at 602 n.2 ("We are not certain for what crime(s)
husband is currently serving a term of imprisonment."). The court goes on to explain that
there is some indication the father is incarcerated for offenses related to auto theft resulting
in two fifteen year sentences.

207 The test also contemplates a new and unique law recently enacted in the State

of Delaware, DEL. CODE ANN. tit. 13, § 728(e) (2006), which requires a judge to consider the
following factors before ordering visitation at a correctional facility:

(1) The parent seeking visitation in a correctional facility had a
substantial and positive relationship with the child prior to incarceration;

(2) The nature of the offense for which the parent seeking visitation is
incarcerated;

(3) Whether the victim of the offense is the child, a sibling of the child,
stepsibling, half sibling, parent, stepparent, grandparent, guardian, or
custodian of the child; and,

(4) Whether the child seeks a relationship with the incarcerated parent.

Id. Regrettably, the statute fails to consider the relationship between the child and the abused
parent, the risk of emotional harm resulting from exposure and the possibility of traumatic
bonding. Although lacking is some areas, the new law takes a bold step toward considering
the underlying crime for which a parent is incarcerated.

208 The eighth factor in Harmon. 943 P.2d at 602.

209 In Etter, the court focused on the incarcerated parent's past and present interest

in the child and whether reasonable contacts took place in the past. Etter, 684 A.2d at 1093;
see also DEL. CODE ANN. tit. 13, § 728(e)(1) (considering whether the parent and child have
a "substantial and positive relationship").

[Vol. 17:2206



2008] Do No Harm 207

trauma to the child;210 and (D) supervision and transportation issues.2 1 A
court should consider these four factors in determining what is best for
children of incarcerated perpetrators of violence towards women.
Furthermore, incarcerated batterers should bear the burden of proving that
prison visitation is in the best interest of the child, in light of the aforesaid
factors.212

A. Nature of the Crime

The court in Harmon v. Harmon suggests that the "nature of the
crime" for which an individual is incarcerated is relevant to the issue of

210 The fifth factor in Etter. 684 A.2d at 1093. The court considered the factor as it

relates to the child's emotional reaction to prison visitation. Instead, this Article will measure
the emotional effects as they relate to the underlying act and how that alters the child's
emotional and physical reaction to prison visitation itself. In addition, the age of the child
referenced in Etter and Harmon will be considered in the context of how children of
particular ages react to traumatic events.

211 Modified factor four, supervision and transportation issues, is a combination of

factors three and four from the Etter test.

212 Who should bear the burden in a particular visitation case is an important

consideration to the litigant, lawyer, and judge involved. See Wilkins v. Ferguson, 928 A.2d
655, 669 n.l I (D.C. 2007) (providing that D.C. law places the burden on the perpetrator of
family violence to show that visitation will not harm the child emotionally or physically).
Courts seem to be split on the issue, some holding that the incarcerated parent must assume
the burden of proving that visitation would not be detrimental to the child. See, e.g., Moore
v. Moore, No. 04CAAI 11, 2003 WL 1924346, at *2 (Ohio Ct. App. Aug. 11, 2005). Other
courts hold that the burden rests with the residential parent or guardian to prove that
visitation would be harmful to the child or children at issue. See, e.g., Meece v. Meade, No.
2005-CA-001510-ME, 2006 WL 1195929, at *I (Ky. Ct. App. May 5, 2006) (applying this
standard where Meece, the father of the children, was convicted of complicity to commit the
murder of an unrelated individual and was serving a twelve-year prison term); KC v. MC,
No. CN99-10809, 2005 WL 4024848, at *11 (Del. Fam. Ct. July 20, 2005). In Moore v.
Moore, the court maintained that it is the incarcerated parent who bears the burden of
establishing that visitation is in the best interest of the child. Moore, 2003 WL 1924346, at
*2. Whereas, Meece v. Meade suggests that the "one who" denies visitation bears the burden
of proving that visitation would harm the child. Meece, 2006 WL 1195929, at *4 (in
determining that the burden was on the mother to prove that visitation would be harmful to
the child, the court relied on Smith v. Smith, 869 S.W.2d 55, 56 (Ky. Ct. App. 1994), which
held that "[t]he burden of proving that visitation would harm the child is on the one who
would deny visitation"). For the purposes of this Article, given the abuser's extreme acts of
violence and present incarceration, the perpetrator parent should bear the burden of proving
that visitation is in the best interest of the child. This Article recommends that states enact
laws that mandate an incarcerated perpetrator of extreme acts of violence bears the burden of
proving that prison visitation will be in the best interest of the children.



Columbia Journal of Gender and Law [Vol. 17:2

213prison visitation. The decision, however, provides little guidance as to the
how trial judges should apply the crime factor. Specifically, which crimes
will trigger a denial of a prisoner's request for visitation and which are
immaterial to the issue of prison visitation? Although select courts do
consider the nature of the crime for which an individual is incarcerated, 214

many judges do not recognize the connection between the acts of violence
and the damage continued contact can have on a child.

When the ultimate act of violence results in murder of the other
parent, courts are more likely to find that visitation is not in the best interest
of the child. 215 Could it be courts find the act of murdering the other parent
so horrifying that the only reasonable outcome is to presume contact
between the killer and the children is harmful? 216 Some states have enacted

213 Harmon, 943 P.2d at 602.

214 A few courts have considered the "nature of the crime" in making prison
visitation determinations. See Gutkaiss v. Leahy, 285 A.D.2d 752, 752-53 (N.Y. App. Div.
2001) (holding that the trial court's denial of visitation was appropriate given the father's
sixty-four year imprisonment and the "nature of the underlying offense" where the offenses
at issue, unrelated to his child, involved "three counts of sexual abuse in the first degree and
two counts of sodomy in the first degree"); McNeeley v. McNeeley, 45 S.W.3d 876 (Ky. Ct.
App. 2001); Rogowski v. Rogowski, 251 A.D.2d 827 (N.Y. App. Div. 1998); Suttles v.
Suttles, 748 S.W.2d 427, 428 (Tenn. 1988) (reversing both the trial and appellate courts,
which had granted visitation to incarcerated father); Koop v. Koop, 378 N.W.2d 121, 123-24
(Minn. Ct. App. 1985).

2 15 Although beyond the scope of this Article, the issues discussed and solutions

provided herein may be applied to some intimate partner homicide cases. Many of those
cases, however, warrant specialized attention that is not essential in all cases of extreme acts
of intimate partner violence. The issue of intimate partner homicide has been the focus of a
vast body of research and scholarship. See NEIL WEBSDALE, UNDERSTANDING DOMESTIC
HOMICIDE (1999); JEAN HARRIS-HENDRIKS ET AL., WHEN FATHER KILLS MOTHER: GUIDING

CHILDREN THROUGH TRAUMA AND GRIEF (2000); Wan, supra note 20; Wallace, supra note
20; Frankie Chamberlain et al., Coping When Mother Kills Father, PSYCHIATRIC TIMES,

Sept. 2001, available at http://psychiatrictimes.com/showArticle.jhtml?articlelD=
185300969; Ahrens, supra note 15; Kowalczyk, supra note 15; Stein, supra note 15.

216 See Ceasar A. R. v. Raquel D., 179 A.D.2d 574 (N.Y. 1992) (denying visitation

request by incarcerated father who killed the children's mother and raped their stepsister);
John R. v. Marlene C., 683 N.Y.S.2d 724 (Fam. Ct. 1998) (denying prison visitation).
Contra State ex rel. Juvenile Dep't of Multnomah County v. Clampitt, 523 P.2d 594 (Or. Ct.
App. 1974) (rejecting the trial court's stated policy of denying prison visitation, in particular,
to a parent who has killed the other parent). The Oregon Court of Appeals explained that
"[e]ach case must be decided on its own merits and not on the basis of a policy not to allow
children to visits their parents at the penitentiary." Clampitt, 523 P.2d at 595. See supra notes
54-55 and accompanying text for a consideration of the issue as it relates to incarcerated
battered mothers.



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laws that specifically address situations in which a parent has committed an
act of domestic homicide and seeks custody and visitation of the children at
issue. 217 Anything short of a parent's death, however, seems to pose great
difficulty for some courts. 218

In Rogowski v. Rogowski, the appellate court affirmed the trial
court's denial of prison visitation, in part, because of the nature of the crime
for which the father was incarcerated. 219 The court noted that the father's
crime was significant. 220 Notably, the father's crime-unlawful sexual
contact-was perpetrated upon a niece and not the child at issue. Despite
that fact, the court found that the trial court did not abuse its discretion
given the daughter's young age, the father's failure to participate in sexual
abuse counseling while incarcerated, supervision concerns, and the length
of time it would take to travel to the prison. 221 The court in Rogowski made
the connection between the nature of acts of child sexual abuse upon third
parties and the relevance of those acts to visitation between a parent and
child. It is difficult to project when courts will make a connection between

217 See CAL FAM. CODE § 3030(c) (West 2004) (barring only unsupervised

visitation); CoNN. GEN. STAT. § 46b-59b (West 2004) (barring visitation to a parent
convicted of murdering the other parent unless the child is of sufficient age and assents to
visitation); DEL. CODE ANN. TIT. 13 § 728(g) (1999); IOWA CODE ANN. § 598.41B (West
2001); Ky. REV. STAT. Ann. § 403.325 (LexisNexis 2007); MD. CODE ANN., FAM. LAW § 9-
101.1 (LexisNexis 2007) (providing for supervised visitation); MAss. GEN. LAWS ANN. ch.
208, § 31A (LexisNexis 2003); NEV. REV. STAT. ANN. § 125C.220(2) (LexisNexis 2004)
(creating a rebuttable presumption that visitation with a parent convicted of domestic murder
in the first degree is not in the best interest of the child).

218 See N.M.M. v. JW.M, No. CNOO-07147, 2002 WL 32101256, at *2 (Del. Fam.

Ct. Dec. 18, 2002) (ordering prison visits to a batterer despite evidence that he strangled and
threatened the other parent, as well as doused her car with gasoline and blew it up in her
driveway); McNeeley v. McNeeley, 45 S.W.3d 876, 878 (Ky. Ct. App. 2001) (vacating and
remanding the trial court's order granting visitation to a imprisoned father who had "brutally
killed" the son of his girlfriend by "beating and stomping him" to death); Charles G. v.
Deborah G., No. CN93-08910, 1999 WL 486584 (Del. Fam. Ct. Mar. 30, 1999). For
additional cases that grant prison visitation in cases of extreme acts of violence, see supra
note 95.

219 See Rogowski v. Rogowski, 251 A.D.2d 827 (N.Y. App. Div. 1998) ("It is

significant that the crimes for which petitioner is currently incarcerated arise from his
inappropriate sexual conduct toward his niece and that petitioner has not received any sexual
abuse counseling while in prison."). Although beyond the scope of this Article, even the
issue of prison visitation between a perpetrator of child abuse and the child at issue is not
always clear to trial courts.

220 Id.

221 Idat 828-29.

2092008]



210 Columbia Journal of Gender and Law [Vol. 17:2

acts of violence and risk to the child at issue when the crime occurs within
the child's household, but is not perpetrated on the child.

In Suttles v. Suttles, the Supreme Court of Tennessee emphasized
the inappropriateness of visitation given the crimes for which the father in
this case was imprisoned. 2 The court reversed a trial court's order granting
visitation to the incarcerated father.223 The Supreme Court of Tennessee
found that visitation between the father and the child was inappropriate
given the father's assault on the child and his violence toward the mother.22 4

The father shot the maternal grandfather, abducted the mother and child,
shot the mother, crashed a vehicle while the mother and child were in the
automobile against their will, and attempted to choke the child.225 The child
was three years old at the time.226 The child's father was sentenced to thirty-
five years in prison for his crimes.227 When the child was five years old, the
trial court granted the father's request for prison visits and the appeals court
affirmed the decision.228 On appeal, the Supreme Court of Tennessee

222 Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). ("While the mere fact that
Defendant is presently incarcerated does not of itself preclude visitation, the combination of
Defendant's incarceration, the crimes for which he is imprisoned, the age of the child, his
history of violence... [and] his violent temper make visitation inappropriate at this time").

221 Id. at 427.

224 Id. at 429.

225 Id. at 428. The record reflects the following extreme acts of violence by the
perpetrator:

Defendant came to see Plaintiff where she was staying at a campground.
. when Plaintiffs father intervened in an argument between the parties,
Defendant drew a pistol and shot the father in the chest. He then
abducted Plaintiff and their son in his car and led the police on a high
speed chase. During the course of the chase, Defendant threatened his
son with the pistol and shot Plaintiff when she tried to protect the child.
As a result of the chase, the Defendant wrecked his car, injuring both
Plaintiff and their son. At some point during this incident, Defendant
choked his son but was restrained by Plaintiff and the police before the
child was seriously injured.

Id.
226 Id. at 428 n.1.

227 Id. at 428. The opinion indicates that father's sentence was later reduced to

thirty years. Id. at 428 n.2.

21 Id. at 429.



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explained that although a noncustodial parent's right to visitation is favored,
it "'. . . may be limited or eliminated, if there is definite evidence that to
permit... the right would jeopardize the child, in either a physical or moral
sense."'

229

In Koop v. Koop, although the Minnesota Court of Appeals upheld
the trial court's decision to deny prison visitation, the high court took issue
with the lower court's reasoning with regard to the oldest son.23 ° The facts
indicate that the father crashed his vehicle into the mother's car, beat her
with a tire iron, and assaulted an individual who attempted to intervene.231

Here, the mother sustained severe injuries as a result of the father's extreme
acts of violence.232 Ultimately, the father was convicted of attempted
second-degree murder and several counts of aggravated assault, and was
sentenced to serve eighty-one months in prison.233 Despite these excessive
acts of violence, the appeals court was of the opinion that a teenager's
desire to see his incarcerated father should be given "due consideration"
and indicated that the father was free to file a request for visitation at
anytime.2 34 Although the appellate court found that the trial court did not
abuse its discretion in denying prison visits to the father, its dicta calls into
question the lower court's reasoning that the father's crimes against the
mother are harmful to the child as well. Perhaps the appellate court
struggled with the weight the trial court afforded to the wishes of the
teenager in this case. The message from this decision, however, may
suggest that a court vested with the power of judicial review does not
necessarily regard harm to a mother-no matter how severe, horrific, and
shocking-as harmful to the child.

In N.MM v. J. W.M., a Delaware trial court ordered prison visits to
a batterer father despite evidence that he strangled and threatened the
child's mother, doused her car with gasoline, and blew it up in her

229 Id. (quoting Weaver v. Weaver, 261 S.W.2d 145, 148 (Tenn. Ct. App.1953)).

The high court, however, suggested that given the need to maintain a bond between the child
and his father, the defendant was free to communicate with the child by mail and telephone.
Id.

230 Koop v. Koop, 378 N.W.2d 121, 123-24 (Minn. Ct. App. 1985).

231 Id. at 122.

232 Id.

233 Id. It is remarkable that father's prison sentence was less than seven years,
given the severity of his crimes against mother.

234 Id. at 124.

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Columbia Journal of Gender and Law [Vol. 17:2

driveway.23 5 In its decision, the court indicated that the father seriously

endangered the life of the mother and showed little regard for the well-
being of his children when he sent a frightening letter from prison.236 The
trial judge explained that when making custody and visitation
determinations, the court must consider the best interests of the child
pursuant to statute.237 Although the court maintained that evidence of
domestic violence favored the mother,2 38 the decision failed to consider in
detail the nature of the crimes for which the father was incarcerated, how
such crimes should weigh against the other factors, and their relationship to
the father's prison visitation request. In fact, the court provided no analysis
on the impact that the father's crimes-blowing up the car on Christmas
morning or strangling and threatening the mother-had on the children.2 39

In McNeeley v. McNeeley, a Kentucky Court of Appeals vacated
and remanded a trial court's order granting visitation to an imprisoned
father who had "brutally killed" the son of his girlfriend by "beating and

235 See N.M.M. v. J.W.M., No. CNOO-07147, 2002 WL 32101256, at *2 (Del.

Fain. Ct. Dec. 18, 2002). The decision provides the following facts detailing the violence
father committed against his family:

Later in October [2001], Father was charged with offensive touching and
terroristic threatening for strangling and threatening Mother . . . . On
December 25, 2001, Father called Mother repeatedly to talk to the
children even though he was supposed to call only through a third party,
pursuant to a Protection from Abuse (PFA) Order. Father continued to
call past midnight and, on the following morning at 6:30 a.m., Father
doused Mother's car with gasoline and blew it up in her driveway. He
was charged with possession of heroin, arson, and violation of a PFA
Order.

Id.

236 Id. at *3.

237 Id. at * 1. By law, at the time of the trial, the court was required to consider

seven factors in determining the best interest of the child. Id. at *1 n.1. Delaware's best
interest statute has since changed, adding an additional factor. See DEL. CODE ANN. tit. 13, §
722 (1989). In addition, prison visitation requests are now addressed by the new law. DEL.
CODE ANN. tit. 13, § 728(e) (1989).

238 N.MM, 2002 WL 32101256, at *2.

239 The court granted father a monthly visit with his daughters at the prison. Id. In

addition, mother was required to transport the children to the correctional facility "to
facilitate the visits." Id. Although beyond the scope of this Article, a mandate that a victim of
a horrific act of violence must travel to a correctional facility where her abuser is housed, for
any purpose, shocks the conscience and suggests the need for further consideration.



2008] Do No Harm 213

stomping him" to death.2 40 The trial court entered an order granting prison
visitation to the father without holding a hearing on the matter.241 The
Kentucky Court of Appeals observed that the record established the trial
court's failure to consider the crimes for which the father was
incarcerated.242 As such, the Kentucky Court of Appeals maintained, "[t]he
documents appellant provided to this Court from appellee's criminal
conviction are deeply troubling. They reflect that appellee was abusive to
all the children in his household, which includes the minor children
concerned in the case at issue. 24 3 The court referred specifically to the fact
that the children at issue lived with the father, his girlfriend, and the
murdered child. 244 The documents appellant provided showed that he
"brutally killed his girlfriend's son . . . by beating or stomping him,
lacerating his liver and mesentery, on the day before his second
birthday. 245 The appeals court held that by ordering visitation without a
hearing and failing to consider appellant's evidence the trial court had
erred.246 The case was remanded for a hearing on the matter.247

In Gregory C. v. Nyree S., the Supreme Court of New York,
Appellate Division held that although the denial of visitation to a parent is a
"drastic result," it is appropriate "where compelling reasons and substantial
evidence show that visitation would be detrimental to the child., 248 The
family court in Gregory C. v. Nyree S. denied the father's request for prison
visitation and the father appealed. The New York Court of Appeals

240 McNeeley v. McNeeley, 45 S.W.3d 876 (Ky. Ct. App. 2001).

241 Id. at 878. The decision was based on a motion to modify a prior visitation

order, to which mother failed to respond. Id. The appeals court indicated that it was
reasonable to conclude that mother expected she would be afforded an opportunity to
respond at a hearing. Id.

242 Id.

243 id.

244 id.

245 id.

246 Id. Regrettably, the appeals court found that it was not vested with the authority

to make the ultimate determination whether visitation should be granted or denied; that
decision was for the trial court to make. Id at 879.

247 id.

248 Gregory C. v. Nyree S., 790 N.Y.S.2d 130, 131 (App. Div. 2005).



Columbia Journal of Gender and Law

explained that compelling reasons existed in the case at bar to deny
visitation.249 In this case, the father was serving a twenty-five year prison
term for the murder for hire of an unrelated individual.25 ° In addition, there
was evidence that acts of domestic violence had taken place in the past.
Specifically, he abused the mother while she was pregnant and sent her
threatening mail from prison.251 The appeals court explained that the record
supported the lower court finding that the father failed to understand the
harm visitation would cause to the children.252

Similarly, in Trombley v. Trombley, the father appealed the trial
court's denial of his request for visitation.2 53 The evidence showed that he
was convicted of sexual assault and criminal possession of a weapon as a
result of acts of violence against the mother.254 In addition, he committed
extreme acts of violence against a recent girlfriend resulting in a ten-year
prison term. Specifically, his girlfriend testified that at times while the child
was in the household, he beat her with his fists, a sledge hammer, steel-toed
boots, and a frying pan.255 The New York Supreme Court Appellate
Division noted that although visitation is not inappropriate simply because a
parent is incarcerated, visitation should be denied upon a showing of harm
to the child.256 Accordingly, the court held that there was a "sound and
substantial basis" for the trial court's decision to deny the father's request
for prison visitation given the facts of the case.257

The foregoing decisions illustrate that it is difficult to predict in
cases of extreme acts of violence under what circumstances a court will
grant or deny prison visitation to the batterer. As a result, courts must come
to understand cases involving extreme acts of violence against family
members command specialized attention.

249 Id.

250 Id.

252 Id. at 143.
2121Id. at 143.

253 Trombley v. Trombley, 301 A.D.2d 890, 890 (N.Y. App. Div. 2003).

254 id.

255 Id.

211 Id. at 891.

257 id.

[Vol. 17:2



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B. Parent and Child Relationships

In Etter v. Rose, the court proposed considering the incarcerated
parent's past and present interest in the child, as well as whether reasonable
prior contacts took place, as factors six and seven of its factors for
adjudicating visitation determinations. 8 This Article suggests modifying
factors six and seven of the Etter test to consider (1) the relationships
between all parties involved, (2) how prison visits will influence those
associations, and (3) how the dynamics of the current bonds relate to the
appropriateness of prison visitation between perpetrator and child.

1. The Perpetrator-Parent and Child Bond

Experts acknowledge that although parental incarceration itself may
lead to trauma in some children, 259 the outcome may depend upon the
relationship between the child and the perpetrator-parent prior to
incarceration. 260 If a healthy bond has not formed prior to detention, it is
unlikely that forced visitation during the parent's incarceration will fix
longstanding problems the batterer's behavior as a parent created.

In the words of the Tennessee Court of Appeals, "the affection of a
child must be earned. It cannot be commanded., 2 61 Neither the court, nor
the perpetrator can force a child to form a healthy bond with a parent who
has acted in a harmful manner. The court explained that although a judge
can provide the parent with an opportunity to form a relationship with one's
child, in the end the court "cannot compel or create such a relationship., 262

There comes a point when a parent is so dangerous, either emotionally or
physically, that he must forego the opportunity to develop a relationship
with his child.

258 Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super. Ct. 1996).

259 Karin D. Young, Children of Incarcerated Fathers: An Exploration of the
Psychological and Social Tasks of the Child 8 (May 2000) (unpublished clinical dissertation,
California School of Professional Psychology) (on file with the California School of
Professional Psychology).

260 Id. at 9.

261 Arnold v. Arnold, 774 S.W.2d 613, 619 (Tenn. Ct. App. 1989).

262 Id. at 621.

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216 Columbia Journal of Gender and Law [Vol. 17:2

Although the absence of a father may result in negative effects on
the child in some cases, 263 the context in which it arises is key. Just as it is
unsound to claim that all incarcerated fathers present a danger to their
children, so too is it inaccurate to suggest that all parental involvement is
beneficial to children. In fact, the negative effects of an absent father may
be inconsequential when compared with the trauma experienced by children
exposed to perpetrators of extreme acts of intimate partner violence.264 As a
result, the incarcerated parent's past and present relationship with the child
and whether reasonable contacts took place in the past must be considered
in the context of parent-child bonding. Evidence of what appears to be a
strong bond between the incarcerated parent and the child may result in an
inaccurate legal conclusion that promoting the parent-child relationship is
justified and possibly even essential to the child's emotional development.

Lundy Bancroft and Jay G. Silverman suggest that bonding
between perpetrators of domestic violence and their children may be
misleading.2 65 They maintain that "abuse of any kind, including direct child
abuse, does not necessarily lead to distant, superficial, or overly fearful
relationships. 26 6 They suggest that victims can form strong bonds with
their abusers, known as traumatic bonds.267 Bancroft and Silverman have

263 GABEL & JOHNSTON, supra note 10, at 141; see also Yarrow, supra note 10, at

89.

264 Even those who believe a child's attachment to both mother and father is

critical to the healthy development of the child acknowledge that, in some cases, contact
must be restricted. See Joan B. Kelly & Michael E. Lamb, Using Child Development
Research to Make Appropriate Custody and Access Decisions for Young Children, 38 FAM.
& CONCILIATION CTS. REV. 297, 302 (2000) (suggesting that intimate partner violence,
among other harmful exposures, negatively influences the "security and stability of
attachments"). Kelly and Lamb offer that once there is a reduction in exposure to the harm,
children can become securely attached over time. Id.

265 BANCROFT & SILVERMAN, supra note 61, at 39-41 (providing a detailed

explanation of the occurrence of trauma bonding).

266 Id. at 39. Although traumatic bonding can result in a strong connection between

the child and the perpetrator, these bonds are unhealthy according to Bancroft and
Silverman. Id. at 40.

267 See Id. at 40. The authors explain:

In traumatic bonding, the person who brings the soothing relief is the
same one who perpetrated the abuse. Following an incident of abuse, for
example, an abuser may apologize for what happened, express concern
for how the victim is feeling, and speak in a calm and warm tone. The
typical response in victims of abuse is to feel thankful for the kindness,
to be eager to forgive, and to form a belief that the abuser actually cares



2008] Do No Harm 217

found that even those who witness violence can develop traumatic bonds
with the perpetrator once the observer learns "that one path to relative
safety is to maintain a close bond with the abuser."268 Consequently,
although it may appear to outsiders that the child and the incarcerated
parent have a close connection, instead a very harmful and emotionally
damaging relationship may exist269-a harmful bond that is not easily
detected. The court's continuation of that unhealthy relationship may in fact
cause unintended, additional harm to the child both emotionally and
physically. As we saw earlier in Rahn, the court based its decision to grant
prison visitation in part on evidence of what it believed to be a strong
relationship between the child and father.270 Hearing officers must look
deeper to make accurate assessments about the type of bond that exists
between parent and child.27'

deeply for him or her. Once this cycle has been repeated a number of
times, the victim may come to feel grateful to the abuser for stopping the
abuse each time, even if no real kindness or attentiveness follows.

1d; see also Janet R. Johnston & Robert B. Straus, Traumatized Children in Supervised
Visitation: What Do They Need?, 37 FAM. & CONCILIATION CTS. REV. 135, 136 (1999)
(suggesting that children form unhealthy attachments with abusive parents out of fear "in a
defensive attempt to master their fears, the children may have developed pathological
attachments to that parent and may have aligned with him or her").

268 
BANCROFT& SILVERMAN, supra note 61, at 41.

269 Id. (citing M.R. Whitten, Assessment of Attachment in Traumatized Children, in

B. JAMES, HANDBOOK FOR TREATMENT OF ATTACHMENT-TRAUMA PROBLEMS IN CHILDREN 35
(1994)).

Traumatic bonding leads the child to become increasingly focused "on
the needs, wants, and emotional state of the abusive adult[, which] is her
best shot at maintaining safety for herself," while simultaneously causing
the child to lose focus on developing his or her abilities or engaging with
the world ....

Id.

270 Rahn v. Norris, 820 A.2d 1183, 1187-88 (Del. Fam. Ct. 2001) (explaining that

"[a]s bad as the relationship was between mother and father, it is clear from mother's
testimony that David was very close to his father").

271 DEL. CODE ANN. tit. 13, § 728(e)(1) (1989). The statute requires consideration

of several factors, one of which is the "parent seeking visitation in a correctional facility had
a substantial and positive relationship with the child prior to incarceration." Id. Although this
law is a good start, what appears "substantial and positive" to the objective observer may be
misleading without expert assessment.



218 Columbia Journal of Gender and Law [Vol. 17:2

The behavior of the perpetrator is also relevant to the equation
given his distinctive characteristics as a parent.272 According to Karin D.
Young, children of incarcerated parents may be the object of harsh or
violent treatment, given the nature of domestic violence; research indicates
that inmates tend to exhibit "coercive and authoritarian patterns in
managing their children's behavior., 273 The parenting behaviors of confined
batterers may, in fact, be more dangerous than many experts on incarcerated
parents understand, due to the batterer's unpredictability. According to
Bancroft and Silverman, batterers tend to swing from authoritarian to
permissive, or even indifferent, without warning when parenting.27 4 These
poor parenting styles may be more damaging to children exposed to
domestic violence because of the trauma they may experience as a result of
the violence.275 Bancroft and Silverman suggest that batterers are more
often angry at their children and more likely to use physical discipline than
non-batterers.

276

272 BANCROFT & SILVERMAN, supra note 61, at 6-7. According to Bancroft and

Silverman:

[B]atterers tend to be controlling and coercive in their direct interactions
with children, often replicating much of the interactional style that they
use with the mother . . . . Their coercive parenting has multiple
consequences for families .... In particular, the batterer's tendency to
be retaliatory has important implications for children who disclose abuse
to outsiders or who call for police assistance during an assault.
Professionals intervening in families affected by domestic violence need
to remain aware at all times of the high potential for punishment or
intimidation of the children by the batterer for discussing events in the
home.

Id.

273 Young, supra note 259, at 12.

274 BANCROFT & SILVERMAN, supra note 61, at 30; see also Johnston & Straus,

supra note 267, at 140 (noting "unpredictable shifts in the moods and availability of parents,
and especially, climactic incidents of violence from fathers who could, at other times, be
loving caretakers or doting suitors, left some children with a 'double image' of their
fathers").

275 BANCROFT & SILVERMAN, supra note 61, at 30 ("Children exposed to domestic
violence are very often at emotional risk because of the traumatic effects of the violence
itself, and thus poor parenting by a batterer can be felt more deeply than might be the case in
other circumstances.").

276 Id.



Do No Harm

In addition, experts suggest that "mutual influence" may explain
why criminal behavior repeats itself generation after generation in some
families. 2 7 Through mutual influence one family member has a negative
influence on the behavior of his or her children by providing destructive
role models for the child to emulate.27 8 Instead of seizing the opportunity to
break the cycle of violence, court-ordered prison visitation between
batterers and their children supports and encourages extreme acts of
violence against women. As a consequence, the cycle of violence continues.

2. The Abused-Parent and Child Relationship

Experts in the field support the notion that the well-being of
children exposed to violence against women is directly linked to the well-
being of the abused parent.279 According to Dr. Lois A. Weithom, research
supports the view that a positive relationship between the non-abusive
parent and the child is critical to the child's healing process. 280 In prison
visitation cases in particular, the stability of the abused parent is critical
because the abused parent may be the sole provider of care for the child.

By his intentional illegal acts, the abuser has not only removed
himself from the role of parent, provider, and caretaker, he has also
intentionally injured and traumatized the child's only available caretaker.
By demanding visitation, the incarcerated batterer adds to the problem by
causing additional emotional trauma to the child and the abused parent.
Requiring visitation may allow the batterer to continue to harass and
intimidate the mother through her children. Visitation allows the abuser to
maintain control over the battered spouse through the legal process, places
additional financial burdens upon her in transporting the children to the
prison, and constrains her time, depending on the frequency of the visitation
schedule. Most importantly, the survivor must handle the daily stress that
results from continued contact, in any form, with someone who has
committed horrific acts of violence against her.

In contrast, a child's positive bonds may counteract the negative
effects of traumatic bonding, as well as other traumatic events. Based on the

277 Laing & McCarthy, supra note 99, at 23.

278 id.

279 Weithorn, supra note 59, at 135-36 (citing OFFICE OF JUVENILE JUSTICE &
DELINQUENCY PREVENTION, OFFICE OF JUSTICE PROGRAMS, DEP'T OF JUSTICE, SAFE FROM

THE START: TAKING ACTION ON CHILDREN EXPOSED TO VIOLENCE (2000)).

8 Id at 136.

2008] 219



Columbia Journal of Gender and Law

work of Gayla Margolin, Bancroft and Silverman suggest that a child's
ability to recover from trauma is associated with a positive relationship with
a loving parent or other caretaker.28' Unfortunately, to exert power over the
other parent, many abusers intentionally damage the relationship between
the child and the battered parent.282 Allowing the child to strengthen ties
with the non-abusive parent or caretaker safely may offset the negative
effects of traumatic bonding. Preventing perpetrators from continuing to
traumatize their children during prison visits may aid in the healing process
for children exposed to extreme acts of violence to women.283

RJ v. DJ provides an example of the positive correlation between
removal of a negative parental figure and the healthy development of
children.2 84 The court in RJ denied the incarcerated father's visitation
request based in part on the effect such visitation would have on the
mother's emotional stability. 285 According to the family court: "[The
m]other is in effect the only parent the child has at this time and the child's
well-being is entirely dependent on his mother's stability. 286 RJ did not
involve intimate partner violence, and yet the court was inclined to find that
if frequent prison visitation would at all negatively impact the mother's
ability to "function effectively as a sole custodial parent," visitation should

281 BANCROFT & SILVERMAN, supra note 61, at 42 (citing Gayla Margolin, Effects

of Domestic Violence on Children, in PENELOPE K. TRICKETT & CYNTHIA J. SCHELLENBACH,
VIOLENCE AGAINST CHILDREN IN THE FAMILY AND COMMUNITY 57 (1998)). Bancroft and
Silverman suggest "children's resilience to any type of traumatic event has been linked to the
presence of a good parent or parentlike figure in their lives, which for children exposed to
domestic violence points to the importance in most cases of their relationship with their
mother." Id; see also Weithom, supra note 59, at 88-89 (maintaining that research supports
the notion that the "presence of 'protective' factors that promote the child's 'resilience,'
such as a "strong and capable parent," are important to consider when assessing how
children experience domestic violence); HARRIS-HENDRICKS, supra note 215, at 13
(explaining that securely attached children are better able to manage stress).

282 BANCROFT & SILVERMAN, supra note 61, at 57-64 (maintaining that battering

undermines the other parent's authority thus damaging the relationship between the child and
the battered spouse).

283 See id at 82-83.

284 RJ v. DJ, 508 N.Y.S.2d 838 (Fain. Ct. 1986).

286 Id at 840.

220 [Vol. 17:2



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be limited.287 The court suggested that the mother's ability to function was
paramount to the healthy development of her child.288

Similarly, the Nebraska Supreme Court in Casper v. Casper
affirmed a trial court's limitations on incarcerated father's visitation on the
basis that the "best interest of the children lay in the establishment of a
stable home environment., 289 Because prison visits were disruptive to the
children, the mother, and her new husband, the court found contact to be of
little benefit to anyone other than incarcerated father.29°

Extending the analysis of Casper and RJ to cases involving extreme
acts of violence to mothers, ordering visitation between the abuser and the
child may result in additional stress to the battered mother. Courts are faced
with a difficult task when asked to protect the health and emotional stability
of the parent with physical custody, assess future risk to children, and weigh
the interests of incarcerated batterers seeking contact with their children.
There are, however, important reasons why courts should consider the
interests of all individuals whom these unique visitation determinations
affect.

Experts suggest that an abused mother may suffer from depression,
which could disrupt her ability to adequately respond to the needs of her
children.29' Moreover, "[a]dequate parenting capacities are important
mediators of developmental risk to children who have been exposed to
ongoing violence."292 Removing the abuser from the situation, thus
affording a safe environment for both mother and child, allows the abused
parent the opportunity to heal and thus provide for her children.293 Our legal
system's utmost concern should be the physical and emotional well-being
of the parent solely responsible for the care and nurturing of the child.294

287 Id. at 841.

288 Id. ("It is clear to this Court that mother must have control over the time and

frequency of visitation. Her ability to function effectively as a sole custodial parent is of
utmost importance to her son. The Court finds that it would not be in the best interests of the
child to impose upon mother a recurrent frequent visitation schedule. She already finds the
situation she is presented with as stressful and difficult.").

289 Casper v. Casper, 254 N.W.2d 407 (Neb. 1977).

290 Id. at 409.

291 McGill et al., supra note 27, at 320-21.

192 Id. at 321.

293 Id.

294 RJ v. DJ, 508 N.Y.S.2d 838, 841 (Fam. Ct. 1986).

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Columbia Journal of Gender and Law

The child's well-being depends on the primary caregiver's physical and
emotional stability.

295

C. Trauma to Children

To determine the appropriateness of prison visitation in cases of
extreme acts of violence, courts must understand how children experience
trauma.296 Moreover, judges must consider how visits with a batterer will
affect a child coping with the trauma associated with exposure to extreme
violence. Only then can the court focus on the narrow issue of determining
what impact ordering visits in a prison setting will have on the child.

By understanding how extreme acts of violence against women in
particular, and prison visitation in general, affect children, we can begin to
answer the question of whether the exercise of prison visitation rights by
perpetrators is in the best interest of children.

Exposure to acts of violence that are greater in severity will likely
cause greater trauma to a child than acts that are less severe.297 Moreover,
Spencer Eth and Robert Pynoos suggest that the closer the personal
relationship between the child and the victim, the more likely that grave
trauma will result.298 In addition, Janet R. Johnston and Robert B. Straus

295 id.

296 See Marty Beyer, Developmentally-Sound Practice in Family and Juvenile

Court, 6 NEV. L.J. 1215, 1215-16 (2006) ("Developmentally-sound practice in Family and
Juvenile Court means seeing the complex and unique combination of trauma, disabilities and
childish thinking behind the behavior of each child or adolescent .... Too often, trauma is
viewed as the therapist's domain .... ").

297 See HARRIS-HENDRIKS ET AL., supra note 215, at 143 (explaining "the more

serious the situation the children have suffered, the higher the rate of problems"); Lemmey et
al., supra note 41, at 268 (explaining that exposure to increased physical violence also results
in increased behavioral' problems in children); SPENCER ETH & ROBERT PYNOOS, POST-
TRAUMATIC STREss DISORDER IN CHILDREN 19 (1985) ("Children who witness extreme acts
of violence represent a population at significant risk of developing anxiety, depressive,
phobic, conduct, and post-traumatic stress disorders, and are in need of both clinical and
research attention.").

298 ETH & PYNOOs, supra note 297, at 24 ("The greater the personal impact on the
child, the greater the likelihood a traumatic state will occur. Therefore, it is not surprising
that child witnesses to parental homicide, rape, or suicidal behavior all report feeling
emotionally overwhelmed by the danger to their parent."); see also Beyer, supra note 296, at
1217 (explaining that exposure to trauma that directly impacts the family in particular is
harmful to a child's normal development); HERMAN, supra note 1, at 7 (explaining the
difference between those who witness natural catastrophic events and those who observe
horrific acts by "human design" and arguing that when the act is by human design the
witness is forced to take sides).

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maintain that many of these children appear, to the objective observer, no
different than any other child. 299 They may seem happy and yet, "their
underlying vulnerability becomes quite evident through careful clinical
observations and personality testing, especially when indirect projective
measures are used. ,300 Judges may be predisposed to follow their personal
observations, which may contradict the opinions of experts. In the face of
conflict, judges must acknowledge their limitations in assessing human
emotion and make use of the knowledge and expertise of others.

Complicating this issue further, according to Marty Beyer, is the
fact that children react to trauma in such varied ways. 30 1 This fact alone may
cause some judges to mistakenly conclude that many children do not suffer.
Unfortunately, when trauma goes untreated, the survival skills these
children learn come at what some describe as a "high cost," resulting in
dysfunction later in life.30 2

The Supreme Court of North Dakota in Kraft v. Kraft provided an
enlightened view of the effects of intimate partner violence on children.30 3

According to the court, intimate partner violence, regardless of whether the
child has experienced the violence first hand, has long-term negative effects
on children.30 4 The court affirmed that children do not need to witness abuse
to be affected by intimate partner violence. 05 Although experts in the field

299 See Johnston & Straus, supra note 267, at 137.

3
10 Id. at 137-38.

301 See Beyer, supra note 296, at 1217.

302 Johnston & Straus, supra note 267, at 138.

303 Kraft v. Kraft, 554 N.W.2d 657 (N.D. 1996). Although Kraft v. Kraft does not

involve prison visitation, the court's analysis of the effects of domestic violence on children
provides persuasive authority to be considered in cases involving intimate partner violence.

314 Kraft, 554 N.W.2d at 661.

305 Id.; see also Weithorn, supra note 59, at 4. Weithorn explains:

The data clearly demonstrates that growing up in violent homes is
detrimental to children, even when children are not direct victims of
physical or sexual abuse. Researchers have observed, in fact, that
samples of children exposed to domestic violence display symptoms and
difficulties quite similar to children who have been direct victims of
physical abuse.

Weithorn, supra note 59.

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Columbia Journal of Gender and Law

support this view, 30 6 those entrusted with the power to make legal
determinations about the safety of our nation's children infrequently
recognize it.

To address how children experience trauma, we must also consider
the first factor enumerated in both Etter and Harmon: the age of the child.30 7

Neither court, however, provides sufficient guidance as to how age should
be weighed in the decision-making process.

1. Age-Related Considerations

In Juli B. F v. Clarence S. M Jr., the court denied prison visits
308between the father and the child based in part on the child's young age.

The facts of the case reveal that the father's conviction for assaulting the
mother classified him as a perpetrator of domestic violence, thus triggering
a presumption against awarding him joint or sole custody.30 9 Despite
granting the mother sole custody pursuant to the presumption, the court
explained that it must determine visitation for the incarcerated father
pursuant to the best interest standard.31 0 Ultimately, the court determined
that "meaningful contact" between the father and his daughter was not
possible because of the father's incarceration and the child's young age.31

The court, however, failed to provide any analysis as to why the age of the
child required a finding that prison visitation was inappropriate. 31 2

306 BANCROFT & SILVERMAN, supra note 61, at 3.

307 Harmon v. Harmon, 943 P.2d 599, 604 (Okla. 1997); Etter v. Rose, 684 A.2d

1092, 1093 (Pa. Super. Ct. 1996).

308 Juli B. F v. Clarence S. M Jr., Nos. CN95-08172, 96-20683, 1997 WL 905956

(Del. Fam. Ct. Nov. 10, 1997).

309 Id. at *2.

310 id.

3" Id. at *3.

312 Id. In this case the child was three years old. It is possible that the court based

its decision primarily on the father's sexual abuse of a four-year-old boy and the fact that
while the parents lived together the "[f]ather walked around the residence nude, called the
toddler "sexy," and left Dominique [the child at issue] home alone while he went to buy
beer." Id. Although the father's deviant acts resulted in a finding by the court that he should
not be around small children, the court failed to provide any guidance as to why a small child
would be more vulnerable than older children in this situation. Id.

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Furthermore, basing a denial of visitation on the age of a child is a
temporary solution that fails to resolve the underlying issue. Children grow
up. If the problems associated with domestic violence remain unresolved,
not only will courts fail to order necessary treatment, but critical evidence
related to domestic violence and the resulting trauma to the child will be
lost.3 3

In a standard prison visitation case, the age of the child may, in fact,
tell us very little about when a child should visit in a penal setting.
According to the experts, "age may be arbitrary, [and] 'developmental
psychology does not offer what lawyers would most like: definitive, fixed
information upon which to ground simple, age-based rules.' '314 If the age of
a child does not provide precise answers to the issues of when visitation is
appropriate given the maturity and stage of a child's development, we may
well question the utility of considering age as a part of the decision making
process.

Although age does not provide clear-cut answers, it can provide
some guidance about how children at various stages of development
experience trauma and consequently, how a child of a certain age will react
to continued contact with the battering parent.31 5 A particular child's coping

313 Based on the author's experience representing survivors of intimate partner

violence since 1994. Unlike stranger violence, domestic violence acts often go unreported
and evidence may be lost. When law enforcement, other members of the legal profession, or
medical personnel are absent from the case, photographs, medical reports, witnesses and
related evidence are lost forever. If domestic violence is addressed at the initial custody trial
some evidence of the violence can be procured by the court or counsel at the time of trial
thus making a record of the acts of abuse for the future.

314 See Robert F. Harris, A Response to the Recommendations of the UNLV

Conference: Another Look at the Attorney/Guardian Ad Litem Model, 6 NEV. L.J. 1284,
1288 (2006) (quoting Cynthia Starnes, Swords in the Hands of Babes: Rethinking Custody
Interviews After Troxel, 2003 Wis. L. REV. 115, 134 (quoting Emily Buss, Confronting
Developmental Barriers to the Empowerment of Child Clients, 84 CORNELL L. REV. 895, 919
(1999))); see also Beyer, supra note 296, at 1215 (noting that "[c]hildren and adolescents
cannot be understood simplistically by their age").

315 Although beyond the scope of this Article, a child's age may also establish

whether she or he should have a role in the legal dialogue and the decision-making process.
Questions could be asked, such as: Has the child reached sufficient age to add to the
discussion? If so, what weight should be given to the child's wishes? Although judges,
lawyers and legal scholars continue to debate the issue of the child's rights and the extent to
which his or her wishes should be considered in custody and visitation decisions, there is no
question that there is a place for the child's voice in the discussion. See generally
Woodhouse, supra note 17. In addition, if the child has not reached a suitable age someone
must speak for him or her. According to Professor Barbara Bennett Woodhouse, "treating
children with the dignity owed to individual persons requires an assessment of their needs

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226 Columbia Journal of Gender and Law [Vol. 17:2

skills are fundamental to any judicial determination that the child is able to
manage the trauma associated with extreme acts of violence, and thus
handle further contact with the perpetrator.

Jean Harris-Hendriks, Dora Black, and Tony Kaplan, in their study
of children and trauma, find that age contributes to how the child handles
stress. 3

16 In particular, they maintain that because of their vulnerability and

dependence, younger children fare the worst from exposure to inter-parental
violence.317 Among the harms, exposure to the noises and tension related to
battering can result in irritability and sleep disturbances in infants.318

Adding to the problem, parents are often completely unaware of the extent
to which young children experience violence in the home.319

even if they have no autonomous views to articulate." Id. at 118. The desire to assess and
ultimately express the needs of children is easily stated but not so easily accomplished.
Determining who should speak on the child's behalf can be as complicated as assessing the
extent to which the child's wishes should be taken into consideration. Some courts favor a
law guardian or guardian ad litem (GAL), while others prefer appointing an attorney for the
child. Id. at 130 (considering the role of the attorney for the child). See generally American
Bar Ass'n, American Bar Association Section of Family Law Standards of Practice for
Lawyers Representing Children in Custody Cases, 37 FAM. L.Q. 131, 132 (2003) (explaining
that a lawyer should act as either a attorney for the child or as a "Best Interest Attorney" and
not a "Guardian Ad Litem" because the term is ill defined). The knowledge and training of
the appointed attorney in the area of domestic violence may be crucial to his or her ability to
speak on behalf of a child raised in a home where extreme acts of domestic violence have
taken place. See generally Margaret Drew, Lawyer Malpractice and Domestic Violence: Are
We Revictimizing Our Clients?, 39 FAM. L.Q. 7 (2005). Sadly, this issue may have little
influence on the court when faced with a decision to appoint an attorney for the child in
cases involving violence to women. Assuming an attorney well versed in the area of intimate
partner violence is appointed to represent the child, how does that individual determine the
needs or wishes of the child? Cases involving a criminal conviction or other evidence of
extreme acts of intimate partner violence may benefit from the assistance of a mental health
professional to aid the court and counsel in making assessments about risk to children.

316 HARRIS-HENDRIKS, supra note 215, at 27.

317 Id. (explaining that young children have a "high degree of minor health

problems and somatic complaints, sleep problems and negative mood, are fearful and act
younger than their age and respond poorly to children and adults").

318 id

319 Id. ("[C]hildren see much more of the fighting than their parents realize or wish

to admit. Children old enough to talk can describe violence which neither father nor mother
knows that they have seen. This theme, that children will tell only when asked (and not
always then), occurs throughout all violence and trauma research.").



2008] Do No Harm

320Karin D. Young, in her look at children of incarcerated parents,
finds that "a child's perceptions of and reactions to stress and trauma are
reflected by his or her psychological age and location along the
developmental continuum." 32 1 Consistent with Harris-Hendrik's findings,
Young maintains that although children between the ages of two and six are
able to remember traumatic events, they are unable to "process or adjust to
trauma without assistance" 322 and lack the ability to express their
emotions.323 As a result, children exposed to early childhood trauma "are
more susceptible to negative outcomes" because they are more fearful and
lack the skills older children possess to cope with their negative
experiences.3 24

In addition, Young maintains that children in their early years view
themselves as an extension of their parents and when a parent is harmed,
they experience that harm as if it is happening to them.325 If this is true, how
do children of intimate partner violence process the violent acts inflicted by
one parent against another? Do they view themselves as the abused parent
or the batterer?

326

320 Young, supra note 259, at 107. Although Young focuses on the potential

detrimental effects of the separation caused by parental incarceration, she acknowledges that
her study provides little attention to the issue as it related to family violence. Id. In such
cases, Young recognizes that separation caused by incarceration may in fact be beneficial to
the child. Id. Young suggests further research in several areas; in particular, the extent to
which children already emotionally damaged prior to parental incarceration and not as a
result of the incarceration, manage stress. Id. Despite the primary focus of Young's
dissertation, much of the information she provides on child development is applicable to the
issues presented herein.

321 Id. at 3-4.

322 Id. at 6.

323 Id. at 5.

324 Id. at 5. ("Unlike older children and adults, they [young children] cannot
mentally create alternative scenarios or verbally express their emotional reactions to
trauma."); see also McGill et al., supra note 27, at 315 (explaining that exposure to intimate
partner violence at an early age can result in negative social behaviors including, but not
limited to, the use of violence as a form of conflict resolution).

325 Young, supra note 259, at 5. ("Young children are relatively unable to

distinguish themselves as separate from their parents. Children, therefore, tend to experience
injuries or threats to their parents as injuries or threats to themselves.").

326 Experts in the field have established children's modeling of negative behavior.

See supra notes 277-78 and accompanying text explaining mutual influence.



Columbia Journal of Gender and Law

Experts suggest that the picture is mixed for school-age children.327

Some school-age children exposed to violence may become violent, while
others withdraw. 328 Young contends that children between the ages of seven
and ten have an increased ability to reason. 329 As a result, they likely have a
greater understanding of acts of violence they witness against a loved one,
complicated by the fact that they also have a greater understanding of the
battering parent's role in causing injury to an intimate. Because parents
serve as important role models for school-age children, 330 a batterer's
abusive behavior may be highly destructive to the healthy development of
the school-age child. In general, researchers suggest that children exposed
to violence in the home may have varied emotional responses including, but
not limited to, depression, agitation, or even aggression.3

Harris-Hendriks asserts that older children suffer more guilt from
traumatic events in their lives.332 They feel guilty that they did not, or were
unable to, protect their abused parent. 333 John Batt suggests that adolescents
are vulnerable to negative identity outcomes.334 Batt recommends that
during this stage of identity development, parents should not act in an
"authoritarian, negative or highly punitive" manner.335 Unfortunately, a
batterer's parenting style is frequently controlling, negative, and harmful. 336

327 McGill et al., supra note 27, at 322.

328 Id. ("For school-age children, the symptom picture is mixed. Living with high

conflict may result in aggressive, oppositional, controlling, and anxious behaviors, or both
undercontrolled and withdrawn constricted behaviors.").

329 Young, supra note 259, at 7.

330 Id. at 7.

331 McGill et al., supra note 27, at 320. School-age children experience the trauma

differently because of their ability to reason. Young, supra note 259, at 7. The positive
aspect of this ability to reason could be that school-age children may respond well to
intervention.

332 HARRIS-HENDRIKS, supra note 215, at 20.

333 id.

334 Batt, supra note 27, at 681-82.

335 Id.

336 See supra Part V.B; supra notes 272-76 and accompanying text; Young, supra

note 259, at 12.

228 [Vol. 17:2



2008] Do No Harm 229

Unless and until children receive age-appropriate trauma
assessment and treatment from highly trained mental health professionals,
prison visitation orders will not reflect the needs of children exposed to
violence.

2. Public Health Concerns

Childhood exposure to violence against women is an important
public health concern. As discussed above, children of all ages are at risk of
experiencing negative outcomes as a result of exposure to violence.
Surprisingly, experts maintain that children who witness violence
experience more severe and long-term trauma than children who suffer
injuries because those who suffer injuries tend to focus on their pain, and
not the act of violence.337 Conversely, children who observe acts of violence
tend to focus on the actors and the actions.338

The medical community is leading the charge in providing
outstanding research and data regarding the influence of childhood
exposure to household dysfunction and health risks to those children.339

Vincent J. Felitti and a number of colleagues conducted a study to consider
the relationship between exposure of children to household dysfunction and
abuse 340 and health risk behavior and disease in adults. 34' Felitti noted what

337 HARRIS-HENDRIKS, supra note 215, at 26.

338 id.

339 Vincent J. Felitti et al., Relationship of Childhood Abuse and Household
Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood
Experiences (ACE) Study, 14 AM. J. PREY. MED. 245 (1998); see also Shanta R. Dube et al.,
Childhood Abuse, Household Dysfunction, and the Risk of Attempted Suicide Throughout the
Life Span, 286 J. AM. MED. ASS'N 3089, 3095 (2001). Dube suggests:

Children who experience traumatic events are more likely to have
problems with emotional and behavioral self-regulation later in life and
more likely to mutilate themselves and attempt to commit or commit
suicide. Furthermore, the biological processes that occur when children
are exposed to stressful events such as recurrent abuse or witnessing
domestic violence can disrupt early development of the central nervous
system, which may adversely affect brain functioning later in life.

Dube et al., supra. See also Weithorn, supra note 59, at 85-91 (explaining that exposure to
violence in the home may affect both the health and emotional development of children in
various ways).

340 The term "abuse" is used in broad terms; including emotional, physical, and

sexual abuse to the child. Felitti, supra note 339, at 248. Household dysfunction includes



Columbia Journal of Gender and Law

the medical community has known for some time: high levels of exposure
to adverse experiences "produce anxiety, anger and depression in
children." 342 As a result of the study, Felitti discovered a strong correlation
between high levels of exposure to negative childhood experiences and
diminished adult health status.343 The higher the level of exposure to
negative childhood experiences, the more likely the possibility of health
risk factors, such as increased smoking, obesity, depressed mood, suicide
attempts, alcoholism, drug use, and history of sexually transmitted
disease. 344 Similarly, Barbara Forsstrum-Cohen and Alan Rosenbaum, in
their study of college students, found that the negative effects of childhood
exposure to violence in the home continue into young adulthood.345 In
particular, they found that exposure to parental violence in childhood was
associated with increased levels of anxiety in young adults. 346

3. Buffers to Stress

Experts suggest that the incarceration of a parent may in fact be a
positive change for a family suffering at the hands of a batterer,347 because
incarceration will "act as a buffer to stress, thereby offsetting the negative
consequences that may otherwise follow" from parental incarceration.348

exposure to household members who engaged in domestic violence, criminal behavior, and
substance abuse, as well as exposure to household members with mental illness. Id.

341 Id at 245.

342 Id. at 253.

343 Id. at 251.

344 Id. at 249-50.

345 Fields, supra note 58, at 233 (quoting Barbara Forsstrom-Cohen & Alan
Rosenbaum, The Effects of Parental Marital Violence on Young Adults: An Exploratory
Investigation, 47 J. MARRIAGE & FAM. 467, 468 (1985)).

346 Id.

347 Young, supra note 259, at 41; see also Laing & McCarthy, supra note 99, at 24
("In some circumstances, the imprisonment of a parent may actually serve to reduce risk. For
instance, imprisonment of negligent, violent and abusive parents can clearly benefit children
by removing serious risks of current and future harm.").

348 Young, supra note 259, at 41. Although looking at the stress seen generally

from parental incarceration, Young acknowledges that "positive change can act as a buffer to
stress, thereby offsetting negative consequences that might otherwise follow from negative
change." Young agrees that there were limitations to her study because less attention was

[Vol. 17:2



Do No Harm

The case of Mara C. D. v. Paul C. may best illustrate the positive
correlation between the absence of the perpetrator from the lives of his
children and a dramatic improvement in those children.3 49 In Mara C. D.,
the father was incarcerated at the time of his visitation request because he
had violated his probation by threatening to blow up a family court. 350 The
facts of the case reveal acts of violence so extreme that it is astonishing they
were not the basis for father's incarceration. On one occasion, the father
"picked up a six-inch butcher knife and slashed it in front of [the mother's]
stomach to intimidate her."351 Other acts of violence included attempting to
choke the mother, threatening to kill her and their children, stating that the
only way the mother would leave him would be in a pine box, brutally
beating her, striking the children, and routinely acting out angrily toward
both her and their children.352 The father was arrested on one occasion for
striking the mother repeatedly, pushing her, punching her mouth and ribs,
kicking her arm, throwing rocks and roller skates at her, and threatening to
kill her.353

As a result of his threat to blow up the courthouse, the father was
incarcerated, which brought about his request for prison visitation.354 The
court ultimately denied the father's request for visitation based, in part, on
what the court described as a "dramatic and hopeful improvement in the
children's behavior since the father has been absent from their lives. 355

Evidence at trial showed that the children were "thriving in their new
environment" and that the older child had "greatly improved behaviorally,
emotionally and academically" during the period in which the child had no

paid to situations where parent-child separation as a result of incarceration due to domestic
violence may in fact benefit the child. Id. at 107.

349 Mara C. D. v. Paul C., No. CN96-7446, 1997 WL 878688 (Del. Fam. Ct. July
25, 1997).

350 Id. at *4.

151 Id. at *2.

352 Id. at *2-3.

313 Id. at *34.

354 id.

315 Id. at *8.

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Columbia Journal of Gender and Law

contact with his father.356 Mara C. D. illustrates that, given the opportunity,
children can thrive in the absence of an abusive parent.

D. Supervision and Transportation

In Etter, the type of supervision provided during a supervised visit,
the distance and hardship to the children traveling to the prison for
visitation, and the individual providing the transportation comprised the
second, third, and fourth factors of its seven prong test. Yet, the court
provided little guidance as to how other courts should weigh these
factors.357 Although these factors may appear to be straightforward, they
require some consideration given the distinctive nature of both the
perpetrator and prison visitation.

It is with an undercurrent of trauma to the child, along with the
unpredictability of the perpetrator and his poor parenting skills that this
Article considers the broader picture of prison visitation. The prison setting
itself can be traumatic to many children. The setting by nature will be
unfamiliar, strange, and in some cases unsettling. The atmosphere of prison
visitation has been described as "crowded and noisy, and the setting is
generally not conducive to communication . ... [It is] 'unnatural,'
'uncomfortable,' 'restrictive,' and 'stress-creating' for both [fathers] and
their children." 358 These stressful conditions likely have an amplified
harmful effect on children who already suffer from trauma directly related
to the actions of their incarcerated parent.

Supervision provided during the visit may at first glance seem a
non-issue because visits will take place at a highly secure location.
However, those who are responsible for the supervised visits at a
correctional facility may be incapable of providing appropriate safeguards.
Although trained to guard inmates, prison staff may have little knowledge

356 Id. at *7. Regrettably, the court ordered that mother, a survivor of extreme acts

of violence, write to her incarcerated perpetrator three times a year to supply information
concerning the children's education, extracurricular activities, and health. Id. at *9.
Suggested alternatives to court orders requiring survivors to have contact with their abusers
could include third-party contact for the purpose of supplying information regarding the
children or requiring the batterer obtain the information on his own. Contact alternatives and
access to information must be balanced with the protection of victims against harassment or
intimidation by third parties.

357 Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super. Ct. 1996).

358 See Elizabeth Dunn & J. Gordon Arbuckle, Children of Incarcerated Parents

and Enhanced Visitation Programs: Impacts of the Living Interactive Family Education

(LIFE) Program (2002), http://extension.missouri.edu/fcrp/lifeevaluation/LIFEreport.doc.

232 [Vol. 17:2



2008] Do No Harm 233

and no training concerning the dynamics of intimate partner violence. 9

Visitation centers, on the other hand, are expressly designed with built-in
safeguards.360 Staff may be specially trained in the area of intimate partner
violence and well suited to observe and detect the subtle acts many
perpetrators exhibit, such as a look or a hand gesture that the untrained eye
may never detect. 361 According to Leigh Goodmark, specialized training in
the area of domestic violence not only allows staff to recognize danger, it
also equips them with the skills to appropriately intervene when
necessary.362 In addition, in some cases visitation center staff and volunteers
have social work or psychology backgrounds.363 Goodmark maintains that
unlike prisons, visitation centers, as a policy, may require that their staff

359 BANCROFT & SILVERMAN, supra note 61, at 112. Bancroft and Silverman
discuss the unique aspects of supervised visitation and batterers:

In our experience, because of the manipulative style of many batterers,
supervised visitation does not guarantee children's emotional safety and
well-being unless the supervision is vigilant and is performed by a
professional trained in the parenting of batterers and the dynamics of
domestic violence .... In less structured forms of supervision, the risks
of manipulation are even greater.

Id. In addition, Bancroft and Silverman explain, "the professional assessment of batterers'
parenting is made more complicated by their typical ability to perform well under
observation." Id. at 36; see also HERMAN, supra note 1, at 75 (explaining that the batterer's
"most consistent feature, in both the testimony of victims and the observations of
psychologists, is his apparent normality" (emphasis added)).

360 See generally Standards and Guidelines for Supervised Visitation Network

Practice, 36 FAM. & CONCILIATION CTS. REV. 108 (1998) (providing detailed standards and
guidelines to be followed by those providing the delivery of supervised visitation services).

361 Harrington Conner, supra note 137 (citing Dutton, supra note 137, at 24)
(explaining that domestic violence is a pattern of behavior that over time changes the nature
of the relationship causing both individuals to understand the "meaning of specific actions
and words"). According to Dutton, the victim learns to read the abuser's actions, the
meaning of which "extends far beyond what is being said or done in the moment." Dutton,
supra note 137, at 24. Children, not unlike their abused mothers, learn to read the abuser's
behavior, subtleties the untrained individual is unprepared to uncover or address. Dutton,
supra note 137.

362 Goodmark, supra note 28, at 280. Goodmark acknowledges, however, that even

today many visitation centers are not set up this way. Comments to this article by Leigh
Goodmark, Professor, Associate Professor, University of Baltimore School of Law (Aug. 14,
2007) (on file with the author).

363 Goodmark, supra note 28, at 280.



Columbia Journal of Gender and Law

record their observations during the visitation, providing critical evidence of
an abusive parent's behavior.364

In those few cases where an incarcerated parent commits extreme
acts of domestic violence and a court properly grants visitation, visitation
should be accomplished through therapeutic supervision by a mental health
professional.365 Prior to any contact between the parent and the child, the
mental health professional should conduct an assessment of both the
incarcerated parent and the children involved.366 The mental health
professional must also consider any and all information relating to the
extreme acts of violence in order to properly assess potential childhood
trauma. Only upon an initial finding that limited contact would not be
detrimental to the child's emotional well-being should preliminary
therapeutic visits occur. After a series of contacts the mental health
professional could make a determination for further contact based upon
evaluations during therapeutic prison-visit sessions between the parent and
the child, as well as upon separate evaluations of both the child and the
incarcerated parent. All professionals working with children exposed to
extreme acts of violence should also undergo training in the area of intimate
partner violence and trauma bonding.

Transportation factors also remain crucial to determining whether
visitation is appropriate. The New York Supreme Court Appellate Division
affirmed the trial court's partial denial of prison visitation in Ellett v.
Ellett.367 The trial court based its denial of the father's visitation with his
younger child on several factors, including the time it would take by
automobile to transport the child to the correctional facility.368 Given the
child's young age, the ten-hour round-trip drive, the fact that the child
would be transported by a grandparent, and the lack of a prior relationship,

364 id

365 Standards and Guidelines for Supervised Visitation Network Practice, supra

note 360, at 111 (describing therapeutic supervision as contact between parent and child
facilitated by a certified or licensed mental health professional who is able to provide
evaluation and recommendations for continued contact).

366 Some will argue that the expense of professional assessment and supervision

outweigh the benefits. A price, however, cannot reasonably be placed on the safety of
children.

367 Ellett v. Ellett, 698 N.Y.S.2d 740 (App. Div. 1999). Intimate partner violence

was not a factor in Ellett. The father's lengthy incarceration was based on first degree
robbery and assault convictions.

368 Id. at 748.

234 [Vol. 17:2



Do No Harm

the court denied the incarcerated father's request to visit with the younger
child. 369 The trial court granted visitation between the father and the older
child given their prior relationship and the older child's ability to manage
the long trip to the prison.3 70 Yet, the older child was only two years older
than her three-year-old sister, with whom the court denied prison
visitation.37 1 Ellett suggests that there is a fine distinction between children
of suitable ages when distance and hardship are at issue in a particular case.

The individual transporting the child to visitation must also be
considered in all cases where prison visits are at issue. In no case should the
court order or ask the battered parent to transport the child to the prison for
a visit. The perpetrator must also arrange for a suitable individual who will
safely transport the child to and from the visit at no cost to the battered
parent. This requirement may present serious challenges given the potential
for abuse. The perpetrator may use this opportunity to have family or
friends terrorize, harass, intimidate, or negatively influence the child during
the trip to and from the correctional facility. As a result, the battered spouse
must retain the authority to reject individuals the batterer suggests as
transporters.

VI. THE RESPONSE

The response of the community has a powerful influence on the
ultimate resolution of the trauma. Restoration of the breach
between the traumatized person and the community depends, first,
upon public acknowledgement of the traumatic event and, second,
upon some form of community action. Once it is publicly
recognized that a person has been harmed, the community must
take action to assign responsibility for the harm and to repair the
injury. These two responses-recognition and restitution-are
necessary to rebuild the survivor's sense of order and justice.372

369 Id. At the time of the family court's decision in 1997, the younger child was

three years old.
370 id.

371 Id. at 747 ("Petitioner and respondent are the parents of two daughters, born in

1992 and 1994.").

372 HERMAN, supra note 1, at 70.

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Columbia Journal of Gender and Law

A. Solutions

Our courts could simply do nothing, and it would be far better than
the harm some visitation determinations cause battered women and their
children. To argue that it is the legal system's duty to intervene in a
visitation disagreement may be valid when both parents are similarly
situated. This is not the case when one parent is unable to exercise free
contact with a child due to confinement resulting from a predilection to act
violently toward the other parent. Awarding prison visitation to a
perpetrator of extreme acts of violence places a child at risk of
psychological trauma.373 A true system of justice must acknowledge that an
injury has occurred, that individuals are suffering as a result of that harm,
and that it should inflict no additional damage through legal intervention.

In cases of parental incarcerations as a result of extreme acts of
violence to the other parent, there exists clear evidence to suggest that the
inmate has acted in a manner that is in direct conflict with what is best for
the child. By committing an act of extreme violence the abusive parent
causes harm to the child, as well as the other parent. Research suggests that
children raised in violent homes suffer in varied ways. As a result, the
perpetrator and the child require specific responses not necessary in other
cases of parental incarceration.

L Expert Assessment of Children

Children exposed to batterers who commit extreme acts of violence
against women should receive expert assessment prior to visitation and
treatment, if necessary, from a professional specifically trained in the areas
of IPV and childhood trauma. According to Joseph C. McGill, Robin M.
Deutsch, and Robert A. Zibbell, a child's coping abilities must be
assessed.374 McGill and his colleagues categorize children either as having
adequate or inadequate coping capabilities.3 75 McGill concludes that
children with inadequate coping abilities are most in need of immediate

373 Although beyond the scope of this Article, caregivers have few options
available when visitation is ordered in a case of extreme acts of violence. Appeal is the
obvious choice in some cases, but as we have seen, not all appellate courts are willing to find
that the trial court has abused its discretion. Some appellate courts even fail to recognize the
significance of the nature of the crime as it relates to prison visitation determinations
altogether.

374 McGill et al., supra note 27, at 326.

375 id.

236 [Vol. 17:2



2008] Do No Harm 237

therapy services, and possibly require restricted contact with the abusive
parent. 376 All at-risk children require assessment so professionals can
determine both the extent of their trauma and their coping ability. Our
courts are certainly in the best position to order therapy services and to
monitor treatment with six-month or yearly reviews depending on the
treatment services needed.377

2. Certification of Medical Professionals

As a public policy matter, courts should mandate experts to assess
the appropriateness of continued contact and provide treatment to children
in need of supportive services. The medical profession should properly train
and certify those working with children experiencing trauma associated
with intimate partner violence. Children should have the opportunity to
work though their trauma and break the cycle of violence. According to
Carla Garrity and Mitchell A. Baris, before visitation occurs, courts should
consider, with the assistance of an expert evaluation of the child, the
intensity of the trauma and level of fear the child is experiencing. 378

Children experiencing a high level of trauma or fear should not visit with
their parent, even after the batterer is released from incarceration. 37 9 As

171 id. at 327.

377 Some officials may view court monitoring as a drain on an overly burdened
system that lacks sufficient resources to meet even current demands. Failure to respond to
the needs of children, however, reinforces the cycle of violence that continually places
additional burdens on our legal system in the form of criminal prosecution, probation, and
various forms of civil relief in response to the acts of future batterers. Our reactive legal
system is insufficient. We require a new approach, a proactive approach responsive to those
individuals we are in the best position to help: the children.

378 Carla Garrity & Mitchell A. Baris, Custody & Visitation: Is it Safe, FAM.
ADVOC., Winter 1995, at 40, 44.

379 Although beyond the scope of this Article, the issue of extreme acts of violence
to women extends well beyond the prison walls. Many of the individuals who commit
serious acts of domestic violence receive either a brief prison term or in some cases a
suspended sentence. And unlike the prison visitation cases, post-incarceration cases have
garnered little public attention. Courts lack guidance as to how to handle these specialized
cases involving extreme acts of violence. Moreover, unlike prison visitation situations that
provide, although flawed, a minimally controlled environment in which visitation shall
occur, the circumstances are drastically altered when the perpetrator is no longer
incarcerated. According to the National Court Appointed Special Advocate (CASA)
Association, "[tihe coexistence of domestic violence and child maltreatment is well
established. Judges should be knowledgeable of the safeguards which need to be in place
when determining appropriate visitation which will ensure the child's safety." CHRIS BAILEY,
NAT'L COURT APPOINTED SPECIAL ADVOCATE (CASA) ASS'N, DOMESTIC VIOLENCE AND



238 Columbia Journal of Gender and Law [Vol. 17:2

Garrity and Baris suggest "a supportive parent/child relationship will not
thrive in an atmosphere of fear., 380

3. Representation for Children

A guardian ad litem (GAL), trained in the area of childhood trauma
and IPV, may be necessary in some cases of childhood exposure to extreme
acts of intimate partner violence. If the individual appointed lacks training
and experience in the area of domestic violence, however, the introduction
of a GAL can, in some instances, be problematic.38' If a GAL is involved in
the case, he or she should be charged with ensuring the provision of
specialized services and treatment for children experiencing the trauma
associated with exposure to extreme acts of intimate partner violence.

4. Reunification Efforts

When released from incarceration, former inmates often try to
reunite with their children. As a result, perpetrators should receive batterer's
treatment and appropriate parenting skills training while in prison to ensure
the safety of children upon release. Unfortunately, in some cases treatment
will do little to change the batterer's abusive behavior or poor parenting
skills. 38 2 According to experts, to protect children, judges must understand

CHILD VISITATION: FOCUSING ON THE BEST INTEREST OF THE CHILD 25 (2006),
http://www.nationalcasa.org/download/Judges-Page/0606-family-visitation-issue-0036.pdf.
Added to the short and longer term emotional harms that may be caused by exposure to
extreme acts of violence is the real possibility of physical danger to children.

380 Garrity & Baris, supra note 378, at 45.

381 Based on comments to this article by Leigh Goodmark, Professor, University of

Baltimore School of Law (Aug. 14, 2007) (on file with the author). See supra note 315 and
accompanying text for a discussion of court appointments of law guardian, guardian ad litem
(GAL), or an attorney for the child.

382 See Garrity & Baris, supra note 378, at 43 (explaining that some batterers

commit acts of violence as a result of an impulse control problem, which is "usually not a
treatable condition"). Evaluating the effectiveness of treatment programs for batterers has
also proved difficult. See BRIAN K. PAYNE & RANDY R. GAINEY, FAMILY VIOLENCE &
CRIMINAL JUSTICE: A LIFE-COURSE APPROACH 296 (2005). According to Payne and Gainey:

Literally hundreds of studies have been done on the effectiveness of
different batterer treatment programs. The results of this research show
mixed support for the programs. Some programs are quite successful,
while others are seen as dismal failures. One of the major obstacles that
permeates all of the treatment programs for offenders concerns the
negative attitudes that society has toward child abusers, spouse abusers,



2008] Do No Harm 239

the prognosis for recovery, as well as the length of time it may take for such
383recovery to occur.

The Living Interactive Family Education (LIFE) Program provides
an example of one prison program available for modeling. LIFE is an
extension of the University of Missouri and serves to enhance and
encourage visitation between incarcerated fathers and their children.384 The
program employs unique visitation settings, 4-H activities, and intensive
parenting skills training to enhance the father's communication skills,
manage his anger, promote nurturing, and encourage positive role
modeling.385 In a limited number of cases in which the child has received
trauma therapy and the incarcerated father has successfully completed
intensive batterer's treatment, participation in a program similar to LIFE
may be beneficial to both child and parent. Prior to entry in such a program
the child and parent should participate in therapeutic visitation sessions
addressed herein.

386

5. Judicial Education

Finally, the judiciary must receive specialized training on IPV and
childhood trauma. Although judges must employ and rely on the expertise
of medical professionals, they must also possess certain knowledge about
the dynamics of abusive relationships and the risks to children exposed to
extreme acts of violence. In addition, judges should be required to make
written finding when ordering visitation between children and the battering
parent. Written findings will provide an opportunity for judges to reflect on

and elder abusers. Given that the abusers often already have low self-
esteem, negative reactions from society may slow down the treatment
process.

PAYNE & GAINEY, supra.

383 PAYNE & GAINEY, supra note 382, at 296.

384 L.I.F.E. home page, http://muextension.missouri.edu/fcrp/lifeevaluation/

lifeprogram.htm (last visited Feb. 26, 2008).

385 Id. According to one parent: "It's given us a unique opportunity to be better

parents. You know, you take a lot of us: we've never had a chance to be parents ....
Through this program we learn to become better parents by interacting along with each other
and with our children." Dunn & Arbuckle, supra note 358, at 9.

386 For a general discussion of therapeutic visitation, see GABEL & JOHNSTON,

supra note 10, at 202.



Columbia Journal of Gender and Law

their decision-making and establish a clear record for review when
necessary.

B. Model Test

The following proposed model may be adopted as a test or statute
to be followed by courts in making visitation determinations for
incarcerated batterers.

Section 101. Definitions

(1) Extreme Acts of Intimate Partner Violence: An extreme act of
intimate partner violence (IPV) shall include, but is not limited
to, rape, attempted rape, sexual assault, burning, stabbing,
shooting, strangulation, physical torture, intentionally causing
substantial bodily injury, or threat of serious physical harm by
one parent against the other parent or household member.

(2) Exposure to Extreme Acts of Intimate Partner Violence: A
parent's act of violence against another parent or household
member shall be evidence of harm to the child. Childhood
exposure should be viewed in its broadest context and not solely
in terms of witnessing violent acts. Exposure will include
witnessing acts of violence, observing the aftermath of said
violence or simply living (permanently, or on a limited or
temporary basis) in a home where extreme acts of violence occur,
even if the child is not present during the abusive incident.

Section 102. Presumption Against Visitation for Incarcerated
Batterers

In every case in which an incarcerated perpetrator of an extreme
act of intimate partner violence requests visitation with a child
exposed to said acts, it is presumed that the inmate has acted in a
manner which is in direct conflict with the well-being of the child
and raises a rebuttable presumption that visitation or other contact
between the perpetrator and the child is not in the best interest of
the child.

Section 103. Factors in Determining Visitation in Cases of
Extreme Acts of Intimate Partner Violence for Incarcerated
Batterers

(1) In every case in which a child has been exposed to extreme
acts of violence the court shall order expert assessment and

240 [Vol. 17:2



2008] Do No Harm 241

treatment of the child from a professional specifically trained in
the areas of intimate partner violence, family violence, and
childhood trauma.

(2) In addition to any other factors that a court must consider in
determining an incarcerated parent's request for visitation and in
which evidence of extreme acts of violence exist, the court must
consider as paramount the emotional and physical well-being of
the child; the safety of the child and the abused parent or
household member; and the establishment of a stable home. In
making determinations as to the best interest of the child, the
court shall consider as paramount, above all other factors
provided elsewhere, the following:

(a) The nature of any acts of intimate partner
violence committed by the incarcerated parent;

(b) The emotional and physical effect exposure
to the acts of violence has on the child, age-
related factors, and any additional trauma
which will result to the child from continued
contact between the perpetrator and the child;

(c) The nature of the incarcerated parent's past
and present relationship with the child;

(d) The impact prison visitation or continued
contact with the batterer will have on the
relationship between the abused parent and the
child, as well as the effect such contact will
have on the child's home environment;

(e) The quality and extent of the supervision to
be provided should visitation occur;

(f) The distance and hardship to the child
traveling to and from visitation. 387

387 The "distance and hardship to the child traveling to and from visitation"

language taken from Etter v. Rose, 684 A.2d 1092 (Pa. Super. Ct. 1996).



242 Columbia Journal of Gender and Law [Vol. 17:2

Section 104. Rebutting the Presumption

At the expense and responsibility of the incarcerated parent, the
presumption may be overcome by clear and convincing evidence
of the following:

(a) A psychological or psychiatric evaluation of the child by a
mental health professional specifically trained in the area of
intimate partner violence who confirms in writing that visitation
between the child and incarcerated parent will not further
traumatize the child or impair the child's emotional or physical
development or well-being; and

(b) A psychological or psychiatric evaluation of the incarcerated
perpetrator by a mental health professional specifically trained in
the area of intimate partner violence who confirms in writing that
visitation between the child and incarcerated parent will not
further traumatize the child or impair the child's emotional or
physical development or well-being; and

(c) The perpetrator successfully completes an intensive batterer's
intervention program and provides documentation to the court of
successful completion; and

(d) The perpetrator successfully completes a parenting education
course and provides documentation of successful completion; and

(e) Upon weighing all Section 103 factors, in light of the
treatment of the batterer, the court finds by clear and convincing
evidence that continued contact between the perpetrator parent
and the child will not further traumatize the child or impair the
child's emotional or physical development, or wellbeing.

VII. CONCLUSION

If we do not care about the functioning of the custodial parent, we

neglect the child as well.

There is little question that the mere suggestion that restrictions be
placed upon the parent-child relationship invokes fierce emotional
reactions. Most parents and children have a legal right to their continued
relationship. In addition, there are many public policy reasons why the legal
community should fight to maintain the sanctity of the family unit on behalf
of parents and children. But we cannot ignore the broader picture; our
society will only function if the individuals who make up our community



Do No Harm

are mentally and physically healthy. Thus, an individual's rights and
interests must be balanced with the interests of others and society as a
whole.

When courts begin to examine and weigh the nature of the crime
for which an individual is incarcerated and the risk to children exposed to
those acts as important factors, our system will come to understand that
extreme acts of violence against women are extraordinarily relevant to the
decision of whether a particular incarcerated parent should visit with his or
her child.388 Judges who believe that their decisions regarding visitation are
"not about" the parents are missing the point.389 Our legal system must take
a holistic approach to visitation matters and come to understand that
visitation relates not just to the child but to the parents as well. 390

If it is true that the imprisonment of a batterer acts as a buffer to the
stress typically seen in cases of parental incarceration, 391 court-ordered
visitation may in fact offset the positive effects of parental incarceration.
Given the legal system's paramount objective to make decisions in the best
interest of the child, we must not ignore the importance of the long-term
negative effects of adverse childhood experiences on the health of children
now, as well as into adulthood. As a result, carefully devised restrictions on
prison visitation in cases of extreme acts of violence may provide hope of
recovery to children in distress and a healthier future for all.

388 Although beyond the scope of this Article, many of the factors considered

herein may be applied to cases that extend beyond the prison walls.

389 Information based on the author's representation of hundreds of battered

women seeking civil protective orders and custody of their children. Most recently, in the
fall of 2006, the Delaware Civil Clinic appeared on behalf of a survivor at the call of a
calendar to schedule the custody and visitation matters in the pending case. Intimate partner
violence issues were raised and the judge turned to the client and began lecturing her, telling
her that "this is not about you."

390 McGill et al., supra note 27, at 316 (explaining that custody evaluators must not

only assess the effects violence has on children, but its effects on the parents as well).

391 Young, supra note 259, at 41. See supra notes 347-48 for a consideration of

how prison acts as a buffer to stress.

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