“Ugly Divorce Reform Bill Threatens Victims of Domestic Violence”

Kansas City Star headlines recently announced what those in the field have long known: a tough economy increases the incidence of domestic violence and depletes the resources available to combat it.

House Bill 1234 claims to promote “heterosexual marriage” by making divorce more difficult; what it really does is to strip away hard-won protections for the victims of domestic violence. Indeed, the bill’s proposals are so one-sided, it should be renamed “The Full Protection of Batterers Act.”

The proposals start by limiting divorce to cases of mutual consent or “marital irresponsibility.” Marital irresponsibility, however, includes domestic abuse only in cases of “serious spousal abuse involving injury to petitioner where petitioner was not the initiator of physical violence” or a “history of serious emotional or physical abuse.”

Consider what this means. Husband and wife argue. Husband threatens to kill the wife, and beats her up so badly she ends up in the hospital. Wife sues for divorce.

The husband insists that the wife slapped him first (a common allegation whether true or not) and that the episode of “serious” abuse was an isolated incident. Wife, in the hospital with a skull fracture, has no grounds for divorce.

The bill gets worse. It mandates that the assertion of domestic violence “shall not be deemed credible in the absence of physical evidence or convincing testimony by parties unrelated to the spouses.”

Consider again what this means. The wife returns home from the hospital. The husband repeatedly threatens her, slaps her without leaving bruises, grabs her and holds her by the neck in front of the teenage children, and tells her in front of his mother and her sister that if she leaves him, she will never see the children again.

This woman has no grounds for divorce. Her testimony, however convincing, is deemed not to be “credible” as a matter of law. The testimony of the children, his mother and her sister (all relatives) do not matter.

The proposed legislation also makes it more difficult to protect children. Impressive empirical evidence demonstrates that exposing children to domestic abuse has lifelong negative consequences even if the abuse is directed only at the spouse.

In response to these studies, every state in the country has expanded the ability of the courts to take domestic violence into account in determining custody. This bill would undo the protections.

It provides that even if a spouse meets the act’s tough standards and proves domestic violence to the satisfaction of the court, “a protective order shall not deny the [abuser] parenting time if the petition for dissolution does not allege child abuse or neglect.”

In other words, if the husband cracks open his wife’s skull, but does not touch the children, he cannot be denied parenting time.

And the new definitions of child abuse are even harder to prove than spousal abuse. Punching and hitting children is not physical abuse unless it causes injury.

Moreover, if repeatedly striking a child causes injury only rarely, it is not abuse where it can be said to be an “infrequent” mistake or a manifestation of parental differences about appropriate discipline.

Yet, interfering with the other spouse’s parenting time because the children are terrified is emotional abuse, while threatening to kill a child becomes abuse only if it is “continuing and chronic.”

Finally, the bill punishes spouses who allege domestic abuse, but fail to prove it under these draconian standards.

To take only one example, the proposed legislation would threaten a spouse who alleges domestic violence with loss of custody if the court does not find in her favor, while a battering spouse who commits perjury is guaranteed continuing contact with the children unless he has been separately found guilty of child abuse.

Taken together, these measures provide a handbook on how to inflict domestic terror with impunity. The bill threatens all of us as it puts the cycle of violence that brutalizes parents and children outside of public view – until the violence tragically erupts in ways that are impossible to ignore.

June Carbone is the Edward A. Smith/Missouri Chair of Law Professor at the University of Missouri – Kansas City. She is the co-author of “Red Families v Blue Familes: Legal Polarization and the Creation of Culture” (Oxford 03/10). She lives in Kansas City.

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