Spoiling the Child: Domestic Violence and the Interests of Children

Abstract

ABSTRACTCurrent domestic violence legislation is evaluated to establish whether it sufficiently recognises the links between custody of and access to children and domestic violence. Women's primary responsibility for childcare renders them uniquely vulnerable to domestic violence by constraining their ability to leave abusive relationships and by limiting their capacity to negotiate divorce settlements to their own and their children's advantage. After divorce, batterers may use their rights of access to children to continue to abuse mothers. Furthermore, children who live in homes in which domestic violence occurs are adversely affected. Although the Prevention of Family Violence Act 133 of 1993 determines that a court issuing a protection order may deny or lay down conditions for access to children by the batterer, this provision applies only at the time when a protection order is sought. In cases deciding access or custody at divorce, courts fail to take account of the implications of domestic violence for women or children. Equally, the Mediation in Certain Divorce Matters Act 24 of 1987 does not provide guidelines to Family Advocates dealing with such cases. Mechanisms and rules are suggested which would advance the interests of women and children subject to domestic violence at divorce.