U.S. District Court for the Eastern District

NEW YORK (WOMENSENEWS)–The state’s highest court is considering whether to weigh in on one of the most vexing questions facing those working in the field of family violence: Should a woman be considered unfit as a mother because she shares a home with an abuser?

That is the question that may be answered in coming months, as the New York State Court of Appeals considers offering an opinion on statelaw to guide the federal judge presiding over a complex New York class-action being waged in Brooklyn’s federal courthouse.

And although the outcome of the federal case will directly only affect families in New York, Connecticut, and Vermont–states overseen by the region’s federal appeals court–activists around the country have already begun drawing on some of the arguments used in New York to shore up their own cases.

All of the women in the federal lawsuit being heard in Brooklyn had their children taken away from them after being charged with neglect for allowing the children to witness domestic violence.

The federal trial judge Jack Weinstein found that the New York City agency charged with protecting children had acted unconstitutionally by removing children from the care of these mothers and placed an injunction against the agency barring it from doing the same to other women. The city’s lawyers immediately began working to get that decision overturned, and the suit was kicked upstairs to the U.S. Court of Appeals for the Second Circuit–the federal appeals court for the region.

Just last week advocates for battered women scored a legal victory when the injunction was upheld by the federal appeals court.

Meanwhile, the appels court asked the New York State Court of Appeals to clarify several points of state law before rendering his final decision.

Now state judges–if they agree to give an opinion at all–will hear oral arguments on:

  • Whether parents allowing their children to witness domestic violence against themselves constitutes neglect under New York law;
  • Whether the injury, if any, to the child as a result of witnessing domestic violence constitutes imminent risk (which allows the agency to remove children without court order) and
  • Whether allowing a child to witness such domestic violence is sufficient to allow the state’s Family Courts order of removal without additional, particularized evidence.

If the state court decides its opinion has no bearing on the class action, it will decline to hear oral arguments and the case will proceed in Brooklyn.

Advocates for battered women are clear in their response to these three questions: The answer is no. Taking children from their mother solely because she has been abused is both punitive and shortsighted, they argue, and can have many detrimental, long-term effects on all family members.

Lawyers for the defendant, in this instance the New York City’s Administration for Children’s Services, insist that in some cases it is in the child’s best interest to be removed from a violent household, even if he or she has not been the primary target of the abuser.

The debate has raged back and forth in federal court for almost two years now in the class-action known as Nicholson v. Scoppetta. Proceedings were punctuated by a January 2002 ruling in favor of the plaintiffs, a group of battered women who had been charged with neglect by the Administration for Children’s Services for allowing their children to witness abuse.

In the actual filing of the case, there were five named plaintiffs: Sharwline Nicholson, Destinee Barnett, Kendell Coles, Sharlene Tillett and Ekaete Udoh. (The case name refers to Sharwline Nicholson versus then-commissioner of the Administration for Children’s Services, Nicholas Scoppetta.) However, due to the nature of a class action, these named plaintiffs are meant also to represent (as stated in the court paperwork) “all others similarly situated.” So while the case itself specifically references five people, the end result impacts every battered mother in New York, Vermont and Connecticut.

Advocates for battered women are hailing last week’s ruling as a win, although the battle is far from over.

“This is an important ruling for women and children,” says Carolyn A. Kubitschek, an attorney at Lansner and Kubitschek and lead counsel in the class action. “Charging a battered woman with neglect means she’ll always have that on her record, which can negatively impact her chances for employment, which can actually make it more difficult for her to leave her abuser. And it forces the Administration for Children’s Services to take a more comprehensive approach to dealing with the complexities of family violence instead of just blaming the victim.”

Law on Family Violence Unclear

Kubitschek isn’t overly concerned by the possibility of a detour to state court in Albany. “The federal judge found that New York law wasn’t clear on three questions and, as is common, has referred them to the New York Court of Appeals,” she says calmly. “That’s a good thing, actually, because it gives us a chance to make our arguments on the state and federal level and clarify the law once and for all.”

The New York State Court of Appeals has no jurisdiction in Nicholson v. Scoppetta because it is a federal class action, and therefore can’t do anything to overturn the injunction in place against Children’s Services. However its opinion–if one is given–could impact how the federal judge rules in the final segment of the trial.

Kubitschek is confident that if the state court gets involved, it will come out with an opinion in favor of her clients. Many of the plaintiffs in the federal suit have already regained custody of their children through the state’s Family Court, which Kubitschek interprets as an admission that the charges of neglect levied against them were erroneous.

Reasons for Removal Unknown

Lawyers for the city see it differently however, describing the custody hearings in Family Court as a process and not an admission that the agency erred in labeling some battered women unfit mothers. The agency does not have a set policy on the handling of children in houses where domestic violence exists and lawyers say the agency does not automatically take children from the mother if evidence surfaces that she’s being battered. But, as was revealed during the first phase of the class action, Administration for Children’s Services administrators and officials do consider rapid removal of children an option if a caseworker deems it necessary–even when no evidence of other abuse exists.

Advocates who have been working to get the agency to consider other solutions over the years say they’ve never gotten a satisfactory response from caseworkers on why the agency views some battered mothers as neglectful and unfit. Some advocates speculate that it stems from a misguided attempted to nudge women toward leaving the abuser–or at least reporting the abuse.

Requests to the agency for a comment on its procedures went unanswered. An agency spokesperson declined to comment on agency policies or the latest hearing, saying that the city would not discuss pending litigation.

Alan G. Krams, senior counsel for Corporation Counsel, which handles New York City’s legal affairs, issued a statement about the recent invitation from the federal court to the New York State Court of Appeals in Albany.

“The federal court noted that (the Administration for Children’s Services’) practices are consistent with state law, as it has been interpreted by several of New York’s intermediate appellate courts. Once the New York Court of Appeals addresses the questions of state law posed by the federal court, we are hopeful that the U.S. Court of Appeals will set aside the District Court’s injunction.”

For now, the original ruling in Nicholson v. Scoppetta will stand and its impact on the lives of women and children has already been felt.

Mara Klein, communications director for New York Legal Assistance Group, a non-profit legal advocacy group based in New York, says the agency’s practice of labeling mothers unfit for failure to protect children from witnessing abuse was a terrible deterrent that kept victims from coming forward.

The Administration for Children’s Services does not keep statistics on how many children were taken from their mothers because of domestic violence, but Kubitshek’s research shows anywhere from 80 to 400 families are affected annually.

“Women are often afraid to speak out for a variety of reasons–safety, loss of income, housing–but there’s no doubt that women in New York also became afraid to speak out because they were worried about losing their children,” Klein says.

Now that the agency is prohibited from removing the children of domestic violence victims, she believes more women will come forward to report abuse. And in order for there to be lawyers available that have experience handling the intricacies of Family Court, the group has created the Domestic Violence Clinical Center for law students.

The Domestic Violence Clinical Center is a project that New York Legal Assistance Group runs in conjunction with St. John’s Law School, Klein explains, to ensure that a percentage of graduating law students are educated about family court and representing victims of domestic violence.

When the group decided to draft an amicus brief in support of battered mothers’ case, students at the center did all the research and writing. That brief, says Klein, has since been requested by lawyers representing battered women in similar cases in 12 other states.

In three states, she says, the brief was used by lawyers and advocates battling the exact same procedure as the one applied by Administration for Children’s Services in New York. Another request came from a battered woman in Ohio who had lost her children to a city agency and was taking on the system herself to get them back and still another from a lawyer working on behalf of Native American women in Minnesota in the same situation.

Clearly, say advocates, the mishandling of domestic violence in the home stretches beyond the borders of New York. But, they add, with any luck, the final outcome of Nicholas v. Scoppetta will too.

Ginger Adams Otis is a Pacifica Radio correspondent and frequent contributor to The Village Voice.

For more information:

New York Legal Assistance Group:

Alternatives for Battered Women:

Safe Horizon Domestic Violence Shelter: