Victims of spousal abuse with children face a seemingly terrible dilemma: take every tongue-lashing, every beating and keep your mouth shut or save yourself and risk Child Protective Services (CPS) involvement- and the possibility you lose your child(ren) forever. With those options, there are a great many who suffer in silence. Why is this?
Quite simply, it comes down to three words: failure to protect. Failure to protect is the failure to protect your minor child(ren) from harm or possible harm. In the case of domestic violence, the concern is typically psychological trauma or physical abuse of the child(ren). This means that even if they weren’t in the same room and didn’t hear anything, a single incident of domestic violence in the home can be enough to tear a family apart. Only 15 states (listed at the end of this article) allow CPS to overlook failure to protect if a subject is also a victim of domestic violence and even if you live in a state where the option exists, there’s no guarantee CPS will exercise it in your case.
When domestic abuse occurs, the most common recommendation is to call 911. However, law enforcement are mandated reporters in every state and Washington, D.C. This means that if you have children, it can be risky to reach out for help from law enforcement. If there are children in the home, law enforcement is required to report it to CPS, as in theory, the children could be victims, too. This brings CPS into an already messy picture. On top of that, orders of protection often only protect the alleged adult victim and not the children, which CPS doesn’t like. This pushes CPS to get their own order on behalf of you and your child(ren). This means prolonged monitoring by CPS and supervised visitation controlled by the courts at minimum. This often forces parents who are victims of domestic abuse into silent suffering and if it is actively affecting the child(ren), it prolongs their suffering, too.
When CPS investigates domestic violence allegations, they look at it in terms of both physical and psychological trauma. In evaluating risk, the child(ren) don’t have to be directly involved or exposed to the alleged incident(s). They could be on the other side of the home. From CPS’ vantage point, their mere presence in the home during such conflict creates high potential for psychological trauma at minimum and in some cases, can be used as justification for removal. You can avoid lengthy CPS involvement AND get help out of an abusive situation, though.
If you do call law enforcement regarding a domestic incident or file a domestic incident report, make it clear you fear for the safety of your life and that of your child(ren). Make sure you obtain an order of protection against the alleged abuser that protects you and your child(ren). In the event CPS gets involved, this will prevent them from having a reason to get a redundant order on behalf of you and your children. If CPS gets involved with allegations of domestic violence and it was nothing more than an argument, it is advisable for the parent CPS alleges perpetrated the domestic violence leave the home until CPS involvement is over, for the alleged victim to get an order of protection against the alleged perpetrator protecting the victim and the child(ren) and set up supervised visitation on their own. Once CPS is gone, you can let the order lapse.
It’s important to keep in mind that in states that do allow exoneration from failure to protect for victims of domestic violence, they can choose whether to apply that exception on a case-by-case basis, so living in a state that offers that protection isn’t a guarantee of freedom from liability. With CPS, it can be difficult to predict when it will and won’t be applied, so you should proceed with the assumption that those protections don’t apply to you. While domestic violence allegations reported to CPS can cause years of involvement, it doesn’t have to be and intrusion can be kept a minimum. If you act quickly and prepare accordingly, you can avoid the worst CPS has to offer and get to a safer, better life for you and your child(ren).
The following states allow exoneration from failure to protect for domestic violence victims in CPS cases:
- Alaska: Yes (Conditional)
- Florida: Yes (Conditional)
- Iowa: Yes (Unconditional)
- Kentucky: Yes (Conditional)
- Maine: Yes (Conditional)
- Michigan: Yes (Conditional)
- Montana: Yes (Conditional)
- Nevada: Yes (Conditional)
- New Hampshire: Yes (Unconditional)
- New Jersey: Yes (Conditional)
- Oregon: Yes (Unconditional)
- Texas: Yes (Conditional)
- Washington: Yes (Conditional)
- West Virginia: Yes (Conditional)
- Wisconsin: Yes (Unconditional)
*If you do not see your state listed here, it does not allow exoneration from failure to protect for domestic violence victims in CPS cases at time of writing. Washington, D.C. does not allow exoneration from failure to protect for domestic violence victims in CPS cases at time of writing.