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Children and Domestic Violence

Statute Series 2004

This page is posted with permission from the following author(s) National Clearinghouse on Child Abuse and Neglect Information http://nccanch.acf.hhs.gov/general/legal/statutes/domviol.cfm

Current Through March 2004

You may wish to review this introductory text to better understand the information contained in your State's statute. To see how your State addresses this issue, visit the State Statutes Search.

In recent years, increased attention has been focused on children who may be impacted by violence in the home, either as direct victims or as witnesses to domestic violence. Although mandatory reporting laws have been the primary means for protecting abused and neglected children, many States now provide additional protection for children in their domestic violence laws.

Defining Domestic Violence

Domestic violence can be defined generally as "a pattern of assaultive and/or coercive behaviors, including physical, sexual, and emotional abuse, as well as economic coercion, that adults use against their intimate partners to gain power and control in that relationship."¹ All jurisdictions in the United States have laws that define domestic or family violence. In some States, domestic violence is defined broadly with terms such as "abuse," "harassment," "threats of harm," or "intimidation." In other States, the definition can include more specific behaviors such as burglary, criminal trespass, arson, sexual assault, or violation of a protective order. The persons protected by domestic violence laws can include spouses or former spouses, persons who live or have lived together or have a dating relationship, or other family or household members.

Approximately² 40 States,³ the District of Columbia, and the U.S. Territories Guam, Northern Mariana Islands, and Puerto Rico include children as a class of protected persons in some way within their definitions of domestic violence. Most commonly, a child who is a member of the household or a child of either adult in the relationship is protected by the law. Five States (Arizona, Hawaii, Ohio, Utah, and Vermont) include child abuse in their definition of domestic violence. Four States (Arizona, North Carolina, Virginia, and Washington) specifically include grandchildren as protected persons, and three States (Georgia, Louisiana, and Texas) include foster children.

Exceptions

A small number of States provide exceptions for certain acts in their definitions of domestic violence. The most common exception, in seven States⁴ and Guam, is for acts of self-defense. Guam also exempts defense of others, and Delaware and Louisiana exempt acts committed in defense of a child. Three States (Georgia, Illinois, and Maryland) provide an exception for reasonable acts of discipline of a child. Verbal abuse or argument is exempted by Connecticut.

Child Witnesses to Domestic Violence

Research shows that even when children are not the direct targets of violence in the home, they can be harmed by witnessing the occurrence of such violence.⁵ The witnessing of domestic violence can be auditory, visual, or inferred, including cases in which the child witnesses the aftermath of violence, such as cuts, bruises, or broken limbs. Children who witness domestic violence can suffer severe emotional and developmental difficulties similar to children who are the direct victims of abuse.⁶ The legal system is beginning to recognize the need to protect and care for these children. Approximately 20 States⁷ and Puerto Rico have enacted legislation that specifically includes children who witness domestic violence as a class of persons in need of legal protection.

A child is a witness to domestic violence when an act that is defined as domestic violence is committed in the presence of or witnessed by the child. In some States, the definition goes no further than that. In other States,⁸ the definition is more specific, stating that witnessing by a child occurs when the offender commits the violence "in the physical presence of the child or knowing that the child is present and can see or hear" the act of violence. Washington uses the language "within sight or sound of victim's or offender's children." Ohio law states that witnessing occurs when the domestic violence is committed "in the vicinity of a child," meaning within 30 feet or within the same residential unit occupied by the child, regardless of whether the child is actually present or can actually see the commission of the offense. Minnesota includes chronic and severe use of alcohol or a controlled substance by a parent as part of the definition of "exposed to domestic violence."

Legal Responses

In many States, a conviction of domestic violence committed in the presence of a child may result in harsher penalties. Thus, when the presence of a child during domestic violence is considered to be "aggravating circumstances," sentencing guidelines in most States mandate that such aggravating circumstances result in a harsher criminal penalty, such as a longer jail or prison term or an increased fine. Approximately eight States⁹ include committing an act of domestic violence in the presence of a child as an aggravating circumstance. An additional seven States¹⁰ and Puerto Rico provide for enhanced penalties when domestic violence is committed in the presence of a child.

Illinois and Nevada both require perpetrators of domestic violence to pay for any counseling that a child victim may require. In Delaware, committing domestic violence in the presence of a child is considered an act of child endangerment. In Georgia, it is considered cruelty to children. Indiana requires a noncustodial parent who is convicted of domestic violence in the presence of a child to have visitation with the child supervised for at least 1 year and not more than 2 years following the act of domestic violence.

To see how your State addresses this issue, visit the State Statutes Search.

To find information on all of the States and territories, view the complete printable PDF, Children and Domestic Violence: Summary of State Laws (PDF - 785 KB).

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